In the Irish Courts
| DOI | 10.1177/002201838204600106 |
| Published date | 01 February 1982 |
| Date | 01 February 1982 |
| Subject Matter | Article |
In
the
Irish Courts
Comments
on
Cases
POWER OF EXECUTIVE TO CHANGE JUDICIAL SENTENCE
The State (Craven) v. Frawley
Where a young person, who has been sentenced to be detained in an
Institution following his conviction of a criminal offence, is found by
the visiting committee to be incorrigible or to be exercising a bad
influence on other persons detained in the Institution, the Minister
for Justice may commute the rest of his sentence to such term of
imprisonment with or without hard labour as he may determine,
provided that it does not exceed the unexpired term of the original
sentence of detention. In The State (Craven) v. Frawley [1980] I. R.
1, a youth of eighteen was sentenced to six months' detention and was
reported by the visiting committee to be exercising a bad influence, in
that he had, inter alia, been a leading figure in a riot in the Institution.
The Minister thereupon commuted the residue of his detention to a
term of imprisonment without hard labour. The accused applied to the
High Court for an order of certiorari to quash this order, on the ground
that it was unconstitutional. He took two points: first, that the order
contravened the requirement that justice must be administered in courts
established by law by judges appointed in the manner laid down in the
constitution; and, secondly, that the order contravened the provision
that a person cannot be tried on a criminal charge save in due course of
law.
In The State (Sheerin) v. Kennedy [1966] I. R. 379, the Supreme
Court held that the powers conferred on the Minister to substitute a
sentence of imprisonment with hard labour were unconstitutional. In
the present case, the question related to the unconstitutionality of his
power to commute a sentence to one of imprisonment without hard
labour.
It
was contended on his behalf that the ministerial function
here performed on the recommendation of the visiting committee is the
same as that performed on the basis of medical report relating to
convicted persons of unsound mind. In both cases, the Minister, in
moving the convicted person from one place of custody to another,
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