PRISONERS SENTENCED TO eight years or more are eligible for parole in Ireland. However, those serving sentences for certain offences, such as the murder of a member of An Garda Síochána or the Prison Service in the course of their duty, are excluded from the process.
The Parole Board, which was established on an administrative basis in April 2001, advises the Minister for Justice and Equality in relation to whether or not parole should be granted. The final decision regarding parole of prisoners lies with the Minister.
The power of parole
Sinn Féin has confidently announced it is preparing for Government. Citizens are entitled to know how Sinn Féin in Government would use this power of parole, and whether it would succumb to the inevitable pressure that will be placed upon it by dissidents and ex-IRA members currently serving sentences in the Republic for serious crime.
There are two aspects of the parole system that are in urgent need of reform. First, the Parole Board needs to be put on a statutory basis. Second, having put the Board on a statutory basis, the decision as to whether or not parole should be granted should be removed from the Minister and vested exclusively in a statutory Parole Board.
The current failure to place the Parole Board on a statutory basis means that the important functions played by that Board are denied the force of law and merely constitute a form of advice provided by it to the Minister. A body which performs functions as important as the Parole Board – advising as to whether to release convicted killers and rapists – should be clearly defined and organised in our statute law.
This is particularly so in circumstances where prisoners who believe they have an entitlement to parole can seek to avail of the Courts to achieve that entitlement. For instance, in 2013 the British Supreme Court ruled that prisoners seeking parole were entitled to oral hearings in much wider circumstances than had previously been provided.
Legislation to put the Parole Board on a statutory basis would have to carefully provide for the membership of the Board, the criteria that could be used for granting parole, the offences not covered by the parole process and the protections that would be afforded to the community should a decision be made to permit a prisoner back early into the community.
Should the Minister for Justice have that power?
The second aspect of the system that requires reform derives from the fact that, at present, the ultimate decision as to whether or not to grant parole is decided by the Minister for Justice and Equality.
Although previous Ministers have accepted in full the majority of recommendations made by the Parole Board, each year some recommendations are not accepted or accepted only conditionally by the Minister.
Details as to what recommendations were unacceptable to successive Ministers are not widely known.
However, there are instances where it may be politically uncomfortable for or damaging to a Minister for Justice to accept certain recommendations of the Parole Board. A refusal to accept the Parole Board’s recommendation must be based on legitimate concerns rather than political expediency.
The Sinn Féin question
It cannot be ignored that there is a possibility that Sinn Féin will be in government after the next General Election. At present, there are a significant number of Republican prisoners held in Portlaoise prison. Many of them are, quite correctly, eligible for parole.
Their parole applications, however, should be dealt with in the same way as parole applications by any other prisoner. Considerable pressure will no doubt be placed upon Sinn Féin ministers in government to treat the Portlaoise prisoners, some of whom are former members of the provisional IRA, differently to others within our prison system.
It would be unfair to the victims of their crimes and other prisoners if these prisoners were treated differently because of the make-up of our government. All prisoners, Republican or otherwise, are entitled to equality before the law. If Sinn Féin in government starts exercising the executive power of parole in favour of certain prisoners then our criminal justice system will be significantly undermined.
Incoherent and outdated
More fundamentally, there is something incoherent in having a member of the Executive and the Legislature making decisions in respect of matters that were initially decided upon by the judiciary. It is a practice that offends the principle of separation of powers that keeps politicians away from those functions which are the preserve of the courts and vice versa.
The sentencing of convicted prisoners is an integral part of our criminal justice system. For victims of serious crime it is the manifestation of justice being performed. It must be remembered that once a person is committed to prison they lose some, but not all, of their rights. The ad hoc basis upon which parole is granted in Ireland and the ultimate control of this system by a politician is an outdated way of operating this important aspect of our criminal justice system.
Jim O’Callaghan SC is a Dublin City Councillor and Legal Advisor to Fianna Fáil Frontbench.
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