Neutral Citation Number:  IEHC 416
THE HIGH COURT
[2014 No. 1062 SS]
IN THE MATTER OF AN INQUIRY PURSUANT TO
ARTICLE 40.4.2 OF THE CONSTITUTION
FINTAN PAUL O’FARRELL
GOVERNOR OF PORTLAOISE PRISON
JUDGMENT of Mr. Justice Hogan delivered on the 26th day of August, 2014
1. This application for an inquiry into the legality of the applicant’s detention once again raises vexed questions concerning the contrasting nature of the sentencing systems in England and Wales on the one hand and in Ireland on the other, the capacity of this Court to correct documentary error and the general jurisdiction of the Court in Article 40.4.2 proceedings. The present application arises in the following circumstances:
The background facts
3. The applicant was arrested (along with two others) by Slovak police on 5th July, 2001. They were subsequently extradited from Slovakia to the United Kingdom on 30th August, 2001. They were arrested and taken into custody. The applicant subsequently pleaded guilty at Woolwich Crown Court on 2nd May, 2002, to four serious terrorism offences. He received a sentence of 30 years’ imprisonment from the presiding judge, Astill J., which sentence was back-dated to 5th July, 2001, the date on which he went into custody in Slovakia.
4. The applicant appealed the severity of that sentence to the Court of Appeal of England and Wales (Criminal Division). On 15th July, 2005, that Court set aside the original terms of 30 years’ imprisonment and substituted a sentence of 28 years’ imprisonment. There is no doubt but that the sentence as so varied constituted a final order of the courts of England and Wales.
5. On 28th July, 2006, this Court issued a warrant pursuant to s. 7 of the Transfer of Sentenced Persons Acts 1995-1997 (“the 1995 Act”) providing for the transfer of the applicant to this State and detaining him in Portlaoise Prison. Since the terms of that warrant are of some importance to the issues raised in this litigation, it may be convenient if its terms are set out in full:
“THE HIGH COURT
Warrant pursuant to s. 7 of the Transfer Sentence Persons Act 1995-1997
Applicant: The Minister for Justice, Equality and Law Reform
Sentenced Person: Fintan Paul O’Farrell
Sentencing State: United Kingdom, Great Britain and Northern Ireland
Crime: (i) Conspiracy to cause explosions
(iii) Entering into an arrangement to make money and property available for terrorism.
Sentencing State: (a) 28 years imprisonment for the conspiracy to cause explosions at (i) above.
6. The terms of this warrant convey in rather unambiguous terms the impression that the applicant’s sentence was one of 28 years’ imprisonment commencing on 7th May, 2002. The situation is, however, somewhat more complicated than this. For this purpose it is necessary now to explain the background to the original application for a transfer to Ireland on the part of the applicant.
7. Following the completion of the appeal process and the finalisation of his sentence, the applicant then applied on 22nd August, 2005, for a transfer under the 1995 Act. The Minister wrote to Mr. O’Farrell on 29th March, 2006, prior to the transfer in order to draw his attention to the fact the standard rate of remission in Ireland was 25% rather than the one third figure which applied in the UK. On this basis, therefore, it was estimated that his final release date was 20th January, 2022, rather than the 29th April, 2020. The latter date was the Minister’s understanding of the likely release date were the applicant to remain in prison in the UK. It was on this basis, therefore, that the applicant gave his consent to the transfer on 27th June, 2006.
8. Other formalities were also duly complied with. The relevant British and Irish officials accordingly satisfied themselves that the applicant was an Irish national and that there was the necessary correspondence under the law of England and Wales and Irish law respectively concerning the offences of which the applicant had been convicted. The applicant was then transferred from the United Kingdom to Ireland in late September, 2006.
The plenary proceedings
10. The parties mutually agreed that this course would be adopted in the present case. The applicant then commenced separate plenary proceedings (2014, No. 15582P) in which the Governor, the Minister for Justice and Equality, Ireland and the Attorney General were named as defendants. While there is some degree of overlap between the two sets of proceedings, it has been agreed that I should first give judgment on all issues relating to the warrant of detention made by this Court on 28th July, 2006, under s. 7 of the 1995 Act. The question of the constitutionality of this procedure and, indeed, s. 7 itself accordingly stands adjourned pending the resolution of this first question.
The sentencing system in England and Wales and the decision in Sweeney
12. The significance of these differences between the two sentencing regimes was at the heart of the Supreme Court’s decision in Sweeney v. Governor of Loughan House Open Centre  IESC 42. In Sweeney the applicant had received a sentence of 16 years following his conviction by the English courts for serious drugs offences in December 2006, i.e., after the provisions of the UK 2003 Act had taken effect. Following his transfer to Ireland under the 1995 Act, the issue arose as to what constituted the sentence (or, to use the terminology of s. 1(1) of the 1995 Act, the period of “deprivation of liberty”) for the purposes of the 1995 Act.
13. It was common case that both the Strasbourg Convention on the Transfer of Sentenced Persons (1983) and the 1995 Act envisaged that the legal effect of the sentence was governed by the law of the sentencing state (in this case, England and Wales), nevertheless, as Clarke J. put it (at para. 3.2), “sentence administration and enforcement is for the host country.” It was nevertheless necessary for the Irish courts to have regard to what Murray J. described (at para. 37) as “an objective assessment of its duration and legal nature.” (The 1995 Act gave effect in Irish law to the terms of that Convention for the purposes of Article 29.6 of the Constitution.)
14. In the light of this analysis the Supreme Court concluded that, for the purposes of Irish law, the sentence must be regarded as one of 8 years’ duration. This is evident from the judgments of Murray and Clarke JJ. who both make this point in unequivocal and emphatic terms. As Murray J. said (at paras. 42-45):
43. In the light of the foregoing it seems to me quite self-evident that, whatever descriptive terms are applied to the sentence imposed on the appellant by the English court, objectively it consisted of one period of imprisonment or ‘deprivation of liberty’, to use the language used in the Act in defining a “sentence”, and a second period of liberty under licence which occurred by operation of law and not by virtue of any remission, discretionary or otherwise, granted by the English authorities. In my view, the interpretation of the sentence as imposed in the sentencing state adopted by the Minister is misconceived. In the light of the foregoing, I can see no legal basis on which the appellant could be regarded, as contended by the Minister, as being required to serve in this country a term of imprisonment, or deprivation of liberty, of 16 years, subject only to the rules on the enforcement of a 16 year term of imprisonment applying in this country, namely, the grant of discretionary remission for good behaviour by the Minister. That would require him to serve a sentence longer than that imposed in the sentencing state. For the reasons stated the legal nature and duration of the sentence, namely, deprivation of liberty, is 8 years of actual imprisonment.
44. One might, at the most, draw a parallel between a suspended sentence imposed on a convicted person, however strict any conditions for the suspension might be. A person given a suspended sentence in another State could not, obviously, avail of the Transfer of Sentenced Persons because he is not serving a sentence “involving deprivation of liberty ordered by a court” (s.1(1) of the Act) even though he or she might potentially have to serve such a sentence if the terms on which it was suspended were breached.
45. In any event, it is quite clear, as a matter of English law, that once the appellant completed 8 years of his sentence of imprisonment he was then entitled, by operation of law, to be freed from custody. The question of his recall to prison could only arise if he was in breach of the terms of his licensed release. Such a sentence cannot, in my view, be characterised as a sentence to a period of loss of liberty of 16 rather than 8 years within the meaning of either Article 1 of the Convention, or s.1 of the Act of 1995.”
The implications of the decision in Sweeney for the present case
18. It follows, therefore, that the warrant exhibited by the respondent to justify the detention of the applicant must accordingly be adjudged to be defective as it stands. It cannot be overlooked in this context that the warrant in Sweeney was actually quashed by the Supreme Court precisely for this reason.
19. Applying by analogy the reasoning of the Supreme Court in Sweeney, the applicant’s sentence was in reality one of 18 years, 8 months and some days. It is now also acknowledged by the respondent that Astill J. made an order immediately after the pronouncement of the sentence that the sentence should take effect from the 5th July, 2001(the date of the Slovakian arrests), but that the present warrant does not adequately reflect this rather important detail. I will return presently to the legal consequences of the defective nature of this warrant.
20. It is clear from the correspondence exchanged between British and Irish officials prior to the transfer that both parties envisaged that the sentence of the Woolwich Crown Court would be “continued” in the manner envisaged by Article 9(1)(a) of the Strasbourg Convention (and reflected in s. 7(4) of the 1995 Act) rather “converted” into an Irish sentence as provided for by Article 9(1)(b)(and reflected in s. 7(5) of the 1995 Act). In their judgments in Sweeney both Murray and Clarke JJ. alluded to the possibility that an English sentence of this kind might have to be “adapted” rather than “continued.” It was not necessary, however, for the Supreme Court to consider this question any further because it was clear by reference to the facts of that case that Mr. Sweeney’s sentence had already expired and that he was entitled to be released forthwith.
21. I nevertheless cannot help thinking but that a further consequence of Sweeney is that the English sentence should in fact more properly have been “adapted” under s. 7(5) of the 1995 Act. I find myself coerced to that conclusion because it seems necessarily implicit in Sweeney that the continued enforcement option envisaged by Article 9(1) and Article 10(1) of the Strasbourg Convention (as reflected in s. 7(4) of the 1995 Act) is no longer appropriate in the case at least of sentences of this kind imposed by the courts of England and Wales having regard to the manner in which those sentences provide, not for remission as such, but rather for automatic release following the service of an appropriate portion of the nominate sentence imposed.
22. The “continued enforcement” regime also presupposes that the sentencing state has a sentencing system broadly similar to ours, i.e., full service of the sentence, subject to the right of the prisoner under Rule 59 of the Prison Rules to obtain remission for good behaviour. This is reflected in the very language of s. 7(4) itself which states that, subject to sub-sections (5) to (7), the effect of a warrant under this section shall be:
25. All of this points to an incompatibility between this form of English sentence and Irish law. In the light, therefore, of the decision in Sweeney it would accordingly seem more appropriate if the English sentence were to have been adapted in the present case so that its legal nature could have been converted to a fixed sentence of approximately 18 years and 8 months (i.e., two thirds of a sentence of 28 years). This would seem to be particularly so given that s. 7(6)(a) of the 1995 Act (as substituted by s. 7 of the Transfer of Sentenced Persons (Amendment) Act 1997) provides that:
(i) aggravate it, or
(ii) exceed the maximum penalty prescribed by the law of the State for a similar offence.”
27. It is, however, significant that s. 9(1)(b) of the 1995 Act allows the Minister to apply to this Court “at any time” to vary “one or more of the provisions of the [s. 7] warrant”. Section 9(2) allows this Court upon such application to make an order revoking or varying the warrant “if it considers appropriate to do so in order that effect may be given to the provisions of the Convention.” It follows that it would still be open to the Minister to apply to this Court - should she elect to do so - to vary the terms of the original s. 7 warrant so that the references in the present warrant of 28th July 2006 should be made to conform with the specifications of the Supreme Court in Sweeney.
Should the applicant be released by reason of the defective nature of the s. 7 warrant?
29. In the first of these, Carroll v. Governor of Mountjoy Prison  IEHC 2,  3 IR 292, 306 Peart J. held that where was a “genuine ambiguity or uncertainty” in the duration of a sentence which “cannot be cleared up by reference to the warrants themselves, or any other documents”, then the defect would have to be regarded as so fundamental as to justify the release of the applicant in Article 40.4.2 proceedings.
30. The decision of the Supreme Court in GE v. Governor of Cloverhill Prison  IESC 41 is to broadly similar effect. In that case Denham C.J. expressly stated that a warrant (in that case, an arrest warrant under the Immigration Act 2004) must "contain clear information on its face as to the basis of its jurisdiction".
31. Denham C.J. further held that the arrest warrant was invalid as it did not disclose jurisdiction on its face:
34. I cannot agree that the infirmities in the s. 7 warrant in the present case fall into this category of harmless error of the kind identified by O’Higgins C.J. in McDonagh. The errors in the present case were, on the contrary, significant and might well have contributed to a state of affairs whereby the applicant spent a longer period of time in prison than was ever intended or contemplated by the sentencing court. Indeed, an affidavit filed on behalf of the Irish Prison Service late in the proceedings now identifies 24th October 2016 as the applicant’s scheduled release date. This, after all, is a date over five years earlier than the date which, prior to these proceedings, had hitherto been contemplated as the scheduled release date. As Peart J. stated in Carroll ( 3 IR 292, 303):
36. It is clear that in Article 40.4.2 proceedings the Court enjoys the widest possible powers to investigate the matter itself in respect of this intermediate category of case: see here the comments of Baker J. in Miller v. Governor of Midlands Prison  IEHC 176. In that case Baker J. held that a short form conviction warrant which, when taken alone, did not describe the nature of the offence of which the applicant had been convicted did not provide “sufficient information as to the reason for the applicant's detention.” To that extent, the short form warrant could not justify the basis for the detention.
37. Unlike the situation in Joyce, however, the short form warrant at issue in Miller contained certain identifiers unique to that applicant. In those particular circumstances Baker J. held that she could in principle, at least, investigate whether the short form document could be joined to other documents in order to enable an adequate and certain record to be prepared and exhibited before the court. In this regard Baker J. stressed the wide powers enjoyed by the Court conducting the Article 40.4.2 inquiry, coupled with the fact that the very language of Article 40.4.2 itself requires the Court to give the respondent an adequate opportunity of justifying the detention prior to making any order for release.
38. Baker J. went on to observe that:
In The State (Brien) v. Edmond J. Kelly & Ors  I.R. 69, the Supreme Court was prepared to resolve any ambiguity in the Circuit Court sentences by reference to the Circuit Court records of the spoken decision on sentence. These judgments clearly point to the court having a jurisdiction to hear evidence which can explain the facts in the warrant and are authority for that proposition. The jurisdiction of the court, however, is discretionary and in McMahon v. Leahy  I.R. 525, McCarthy J., at p. 547, was not prepared to "overlook the careless approach and lack of attention to detail" which he found in what was, in that case, an extradition warrant. The court indicated that one might overlook "patent errors in a printed document" but that there were circumstances when this would not be exercised in favour of the respondent. I am not satisfied that there exists any unusual or special circumstances that might require me to exercise my discretion in this case not to admit the additional evidence, especially as I can do so without any oral or extrinsic evidence or any explanation which cannot be gleaned from the face of the documents offered by the respondent.”
40. This would seem especially apt given that the errors resulted from a mutual misunderstanding as to the manner in which the sentencing system of England and Wales actually operated, which misunderstanding did not come to light until immediately after the decision in Sweeney. Nor can one readily overlook the interests of the sentencing state (namely, the United Kingdom) in seeing that its sentences are appropriately enforced by the host State. Having regard to this international dimension and the principle that inter-State co-operation in respect of a potentially sensitive aspect of criminal justice must operate on a full faith and credit basis - a principle which is at the heart of the Strasbourg Convention - it must accordingly be acknowledged, therefore, that the s. 7 warrant in the present case is in certain respects sui generis and different from a warrant which emanated in a purely domestic context. It is, critically, however, the fact that the defects in the warrant in the present case fall into the intermediate category which I have described which makes the present approach the appropriate one.
41. Given that the applicant has a direct interest in any such application, I consider that the constitutional imperatives regarding the administration of justice and fair procedures with regard to the application of statutory powers identified in a long succession of cases from East Donegal onwards (East Donegal Co-Operative Ltd. v. Attorney General  I.R. 317) would require that any such application should be made on notice to the applicant. This, of course, is entirely without prejudice to the wider constitutional argument which also stands adjourned pending the resolution of the present Article 40.4.2 application.
42. For the avoidance of any possible doubt I should stress that the decision as to whether any such application is to be made is entirely a matter for the Minister. I would also add that nothing in this judgment should be taken as expressing a concluded view as to whether an order varying the existing s. 7 order could or should be made.
43. In these circumstances, I propose to adjourn the present Article 40.4.2 application for the shortest possible time (which I would measure in days and weeks rather than months) in order to enable such application to be made. Following the outcome of any such application (should it be made), I will then resume the inquiry into whether there is a valid legal basis for the detention of the applicant. In the event, however, that no such order is made varying the terms of the s. 7 warrant, then under those circumstances this Court would have no option but to order the release of the applicant.
45. The sentence imposed by the Woolwich Crown Court (as varied by the Court of Appeal for England and Wales) was in truth a sentence of approximately 18 years and 8 months.
46. Inasmuch as the s. 7 warrant issued by this Court in July 2006 records that sentence as one of 28 years, it is to that extent defective.
47. Given that the sentencing system in England and Wales is so appreciably different from that which obtains in Ireland, the sentence in the present case should more properly have been adapted pursuant to s. 7(5) of the 1995 Act. The British system of automatic release by way of legal entitlement after service of two-thirds (or, in the case of a conviction April 2005, one-half) of the sentence goes to the legal nature of the sentence imposed by the judicial branch of the sentencing state, whereas the Irish system of remission (which is normally one-quarter) is a fundamentally a matter going to the question of the administration of the sentence by the executive of the receiving state. All of this points to an incompatibility between this form of English sentence and Irish law and, consequently, the necessity for such sentences to be adapted at the time of the transfer of the prisoner to this State.
48. The court can direct the release of an applicant in Article 40.4.2 proceedings where the warrant is so defective that no proper basis for the current detention has been made by the detainer. In other cases, the defects may be so peripheral or technical that they may safely be classified as harmless errors, not affecting the underlying validity of the detention warrant.
49. The defects in the present case fall into an intermediate category. They are too serious to be dismissed as harmless, yet given that the warrant is otherwise replete with details specifying the offences in question, they are not (yet) so pervasive as to destroy the validity of that warrant.
50. In these circumstances, by way of analogy with the approach taken by Baker J. in Miller v. Governor of Midlands Prison  IEHC 176 I propose to adjourn the present application under Article 40.4.2 to enable the Minister (should she consider it appropriate to do so) to apply separately to this Court pursuant to s. 9(1)(b) of the 1995Act to vary the existing s. 7 order so that the English sentence can be properly adapted into our law and, especially, that the duration and commencement of the sentence be properly recorded.
51. Any such adjournment would have to be measured in days and, at most, weeks. I express no view as whether this Court could or should make such an order in the present case. In the event that any such variation order is made by this Court, this is a matter to which I will have appropriate regard. In the event that no such order is made, then in those circumstances this Court will have no alternative but to order the release of the applicant.