Garda killer could remain in prison for more than 40 years

There has been widespread confusion over the conviction and sentence of Aaron Brady for the murder of Detective Garda Adrian Donohoe during an armed raid on Lordship Credit Union in January 2013.

Brady’s case is unique in Irish history as he is the first person to be convicted and sentenced under sections 2, 3 and 4 of the Criminal Justice Act 1990 for the murder of a member of An Garda Síochána acting in the course of his duty.

Precedents set by sentences handed down to previous garda murderers, who were entitled to be released after 30 years, do not apply. Brady, who was sentenced to life with a minimum of 40 years, will never have any automatic entitlement to be released and if he is released he could be sent back to prison at any time.

Tom O’Malley, barrister and lecturer at NUI Galway, points out that the 1990 Act abolished “capital” murder, replacing it with various offences including the “murder of a member of the Garda Síochána acting in the course of his duty”. The term “capital murder” no longer exists in the legislation although it was frequently used by lawyers involved in Brady’s trial and by the media.

Mr O’Malley has written about the Brady case, saying: “A capital crime is one that carries the death penalty, either as the mandatory sentence or as one of several available punishments. It is rather ironic that the error should occur in this jurisdiction where we have abolished capital murder not once, not twice, but three times.”

Prior to the 1990 Act, the penalty for capital murder under the Criminal Justice Act 1964 was death. Monaghan man Noel Callan was among those sentenced to death under that Act for the capital murder of Sergeant Patrick Morrissey following an armed robbery at the Ardee Labour Exchange in Co Louth in June 1985.

Having been convicted and sentenced by the Special Criminal Court, Callan was due for execution when then President of Ireland Patrick Hillery, acting on advice from the government, commuted the sentence under Article 13.6 of the Constitution to one of “penal servitude” for 40 years. Penal servitude was abolished in 1997 and changed to “imprisonment”.

In 2006, Callan sought remission of his 40-year sentence under Article 40 of the Constitution, which would allow him to be released after 30 years. His bid failed in the High Court but the five-judge Supreme Court unanimously found that Callan had the same entitlement to remission as any other prisoner serving a sentence of a definite duration. Callan was released in December 2015, having served 30 years. He had received the standard one-quarter remission.

Brady, however, was not sentenced to death and therefore his situation does not exactly mirror that of Callan. Brady was sentenced to life imprisonment in the same way anyone convicted of murder in Ireland would be. However, sections 3 and 4 of the CJA 1990 add that where a person is convicted of murdering a garda acting in the course of his duty the sentencing judge shall “specify as the minimum period of imprisonment to be served by that person a period of not less than forty years”.

The Act goes on to say that the person is entitled to remission in the ordinary way on that minimum 40 years, meaning that Brady could, in theory, be released after 30 years. In exceptional cases it is possible for prisoners to gain more than the standard 25 per cent remission.

However, Mr O’Malley says changes to the Prison Rules in 2014 have put enhanced remission at the discretion of the sitting justice minister. He added: “The prisoner must be able to demonstrate very significant engagement with education, training and other rehabilitative programmes within the prison.”

Whatever remission Brady earns on the minimum sentence, the life sentence will still apply and there is no such thing as remission on a life sentence.

Dr Diarmuid Griffin of NUI Galway said: “When a person reaches the minimum term of their sentence, they then become eligible for release from prison. Currently, this is within the power of the Minister for Justice, who is advised by the Parole Board.”

If the current rules still apply when Brady has served 30 years, his release would have to be sanctioned by the Minister. However, Dr Griffin points out that the Parole Act 2019, which has yet to be commenced, will create a statutory Parole Board that will make decisions regarding release without the minister having the final say. The Act aims to remove political influence from the decision-making process.

Dr Griffin added: “There are criteria that apply to parole decision-making that will determine the outcome in an individual case and these include an assessment of the risk posed by the person to the community.”

Dr Griffin has studied the real impacts of life sentences in Ireland and says that a person cannot expect to be released immediately on becoming eligible for parole.

He said: “The average time a life sentence prisoner serves in prison prior to being released back into the community has increased over the last number of decades, from 7.5 years between 1975-1984 to 19 years from 2008-2017.

“Many life sentence prisoners serve time in prison beyond this average. In 2019, five per cent of those in custody serving life sentences for homicide had spent 30 years or more inside, the majority of whom were serving an ‘ordinary’ sentence of life imprisonment.”

According to Dr Griffin, if the 2019 Act is commenced in its current form, when a person applies for release the Parole Board may take into account reports from the prison service, probation service, psychologists, psychiatrists, the prison governor, gardaí and others.

A report will be drawn up which may include information on the sentence imposed, the manner in which the sentence was served, the conduct of the prisoner and the likelihood of them reoffending when released. The Board would also consider whether the person will comply with the conditions of their release and whether they pose an undue risk to society.

Det Gda Donohoe’s family would also be invited to offer their views.

The ultimate decision would be made by way of a vote with the chairperson of the Parole Board holding a second, casting vote if there is an equal division. When refusing parole the board must provide “meaningful” reasons to the applicant to assist them in future.

In the interim, the chances of Brady receiving temporary release in the manner sometimes given to life prisoners or those serving lengthy fixed sentences is remote. The CJA 1990 is clear that temporary release for those convicted of murdering a garda is only allowed for “grave reasons of a humanitarian nature”.

Lawyers say that the phrase is vague enough to allow the authorities to use their discretion but the power to release will only be used in extreme circumstances. The case of Real IRA leader Michael McKevitt provides one example of “grave reasons”. He was granted temporary release to be treated for cancer while he was serving a sentence for directing terrorism.

Brady’s legal team is gearing up for an appeal of his conviction, having formally notified the Court of Appeal.