JUDGMENT of Mr. Justice Fennelly delivered the 1st day of February 2012.
1. The Chief Justice, in her judgment, has provided a comprehensive account of the background facts and procedural history of the present case. I gratefully adopt it and will confine myself to a minimal recital of the facts relevant to the legal issue. Charleton J has also summarised the facts in some detail in his High Court judgment. He recites, in particular, the facts surrounding the horrific murder of which the appellant was convicted.
2. The core legal issue is whether the “legal nature” of the sentence of life imprisonment which was imposed on the appellant by the English court is confined to its duration or whether it extends to include the fact that, in English law, the trial judge imposed a minimum tariff of twelve years, the balance being justified solely by considerations of protection of the public, i.e. preventative considerations. The learned trial judge was of the view that the “motivation of the trial judge in setting a particular tariff in respect of personal deterrence and punishment does not change the nature of that sentence.”
3. The case for the appellant is that the legal nature of the sentence which he now is serving in Ireland no longer comprises any punitive or general deterrent aspect. It is submitted that the sentence as imposed in England and applied under English law, once the tariff element of twelve years has been served, is now being served exclusively for entirely preventative reasons. Consequently, it is argued that the legal nature of the sentence is incompatible with Irish law, which does not permit a person’s liberty to be curtailed purely to protect the public by means of his detention to prevent him from committing further crimes. In short, the purpose for which the sentence is now being served, it is said, is part of the nature of the sentence.
4. In order to resolve this issue, it is appropriate to recall briefly the way in which the sentence was imposed and structured. I will then refer to the evidence of English law, which has been provided to this Court, but was not available to the High Court. Finally, I will consider the Transfer of Sentenced Persons Act 1995 as amended by the Transfer of Sentenced Persons (Amendment) Act 1997 and the Convention those acts were designed to implement.
5. In English law, the trial judge was obliged by law to impose a sentence of life imprisonment upon the appellant’s conviction for murder. In addition, however, the judge was required to express his view as to the minimum period which the appellant should serve in respect of retribution and general deterrence. In performance of this obligation, the judge in a document described as “Trial Judge’s Report to the Home Secretary,” dated 22nd December 1999, completed paragraph 9 of what appears to be a pre-prepared form in which he made recommendations in respect of the appellant and his co-accused as follows:
“Trial judge’s view on tariff (the period of years to be served in custody necessary to meet the requirements of retribution and general deterrence) indicating that the factors which aggravate and mitigate the offences).
This was a vicious and brutal stabbing instigated by Evans. He had a long record of offences, mostly for dishonesty but some for violence. Cook was already unconscious and on the floor. Caffrey was of course the principal in Count 1 but not in Count 2. He was man of hitherto good character.
For EVANS I would suggest fifteen years.
For CAFFREY 12 years.”
6. The then Lord Chief Justice, Lord Bingham, on 10th January 2000, endorsed the trial judge’s recommendation by writing the words, “I also agree with his recommendation for Caffrey,” on the same report.
7. Although we do not appear to have the document which so decides, the Ministry of Justice, in a letter of 9th December 2008, informed the Midlands Prison that the tariff was “set by the Home Secretary at 12 years.” That letter of 2008 continued:
“This was the whole period he was required to serve for the purposes of punishment and deterrence and included time spent in custody on remand.”
8. It is common case that the twelve year tariff period ended on 24th March 2008.
9. Both the Chief Justice and Charleton J have dealt in detail with the procedures which were followed concerning the transfer of the appellant to serve the balance of his sentence in Ireland. I note only that, in a letter leading to the signature of the appellant on a document confirming the terms on which he was being transferred, Miss Anne O’Gorman, Principal Officer at the Department of Justice Equality and Law Reform informed the appellant:
“If you consent to a transfer to Ireland, you should expect, save for exceptional circumstances arising, to serve, at a minimum, the tariff imposed in the UK (excluding time deemed to be served in the UK).”
10. Charleton J was uncertain, on the state of the evidence before him, of the nature of the jurisdiction that would have been exercised by the English Parole Board, had the appellant not been transferred but had continued to serve his sentence in England. He said:
“I am not convinced that I have sufficient information which indicates what the motivation of the Parole Board in England and Wales would be in considering the release of this prisoner, were he now there instead of in Ireland. Would that motivation be merely the prevention of further offences and not his preparation, where appropriate, for re-entry into society?”
11. When the matter came before this Court, members of the Court expressed similar concerns concerning the precise nature of the English regime. The hearing of the appeal was adjourned to enable the Respondent to obtain further information. On 11th April 2011, Mr David Perry Q.C. swore an affidavit of English law, which has been provided to the Court. Mr Parry gives a very full account of developments England in sentencing of prisoners to life imprisonment extending back to the period prior to the abolition if the death penalty. That history includes an account of the policies of a number of Home Secretaries, of decisions of the English courts and of the European Court of Human Rights as well as of many legislative changes. Since the legal nature of the sentence is necessarily a matter of English law, Mr Parry’s affidavit is indispensable to an understanding of that central issue.
12. The policy of analysing a life sentence into different components, some concerned with retribution or punishment and deterrence on the one hand and some with prevention on the other has existed in one form or another in England at least since the early 1980’s. In 1983, the Home Secretary, Mr Leon Brittan, announced that:
“…new procedures will separate consideration of the requirements of retribution and deterrence from consideration of risk to the public, which always has been, and will continue to be the pre-eminent factor determining release.”
13. He emphasised that those reporting on life sentences should “concentrate on risk.” While the practice had developed of judges recommending minimum tariffs, successive Home Secretaries had proclaimed that they were not bound by the tariff. Although the House of Lords held in 1994 that mandatory life prisoners had the right to know the minimum period which the trial judge thought they should serve, the Lords did not accept that the Home Secretary was bound by the judicial advice (R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531; see also the decision of the Court of Human Rights in Wynne v United Kingdom 91994) 19 EHRR 333).
14. A major development occurred in November 2002, when the House of Lords in R (on the application of Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 held that the Home Secretary’s powers to determine the tariff in the case of convicted murderers was incompatible with Article 6 of the European Convention on Human Rights. This judgment led in turn to the enactment by Parliament of the Criminal Justice Act, 2003. That Act transferred the power of fixing tariffs in mandatory life-sentence cases to the sentencing judge and introduced statutory guidelines to be taken into account when fixing the minimum terms to be served by such prisoners before becoming eligible for parole. In doing so, the sentencing judge is concerned with the seriousness of the offence and not the dangerousness of the offender.
15. The appellant had, of course, been sentenced prior to the coming into force in England of the Criminal Justice Act, 2003. His case is covered by transitional provisions in Schedule 22 to the Act. As explained by Mr Parry, he is in the category of prisoners who have had a tariff or minimum term set by the Home Secretary (on the recommendation of the sentencing judge). Under the provisions of the Schedule, he had the right to apply to the High Court to have a new tariff set. It appears that the High Court would not have been entitled to increase the tariff. We can assume, I believe, that he has never made such an application. At any rate, it was provided in the statute that any such application could not have postponed the final date of the tariff: 24th March 2008.
16. Mr Parry explains the criteria which would have been applied by a Parole Board in England following the end of the tariff period, had the appellant continued to serve his life sentence in England. Section 28(6)(b) of the Crime (Sentences) Act, 1997 requires a Parole Board to direct release where it “is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.” In the expert view of Mr Parry Q.C., this makes it clear that detention after the minimum term has expired can only be authorised on the basis of the risk of harm. This was explained by Leggatt L.J. in R v Parole Board ex parte Lodomez [1994] COD 525 as follows:
…the Board must be satisfied that it is not necessary that he should be kept in prison and not that there would be a substantial risk if he were released. In other words it must be shown that the risk is low enough to release him, not high enough to keep him in prison.”
17. Where the Parole Board directs release, the prisoner will be released on licence and the conditions of the licence remain in force until death.
18. It is clear that, as a matter of English law, if the appellant had remained to serve his sentence there, his continued detention would have related solely and exclusively to the question of danger to the public. On the other hand, his release could only have been on licence, which would have continued for his life.
19. I turn then to consider the crucial question of the meaning of “nature of the offence.” Section 7 of the Act of 1995 deals with the issue of nature of the offence as follows:
“(4) Subject to subsections (5) to (7) of this section, the effect of a warrant under this section shall be to authorise the continued enforcement by the State of the sentence concerned imposed by the sentencing state concerned in its legal nature and duration, with due regard to any remission of sentence accrued in the sentencing state, but such a warrant shall otherwise have the same force and effect as a warrant imposing a sentence following conviction by that court.
(5) On an application under subsection (1) of this section, if the sentence concerned imposed by the sentencing state concerned is by its legal nature or duration incompatible with the law of the State, the court may adapt the sentence to a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed.
(6) Where a sentence is adapted under subsection (5) it shall, as far as practicable, correspond in nature to the sentence imposed by the sentencing state and shall not, in any event, either—
20. In short, Ireland, as the state where the appellant is serving the balance of the sentence, is, in the first instance, bound to continue to enforce the sentence both as regards its “legal nature” and its “duration.” However, if its legal nature is incompatible with the law of the State, the High Court “may adapt the sentence to a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed.” It is common case that the High Court was not asked to and did not in fact make any order adapting the nature of the sentence.
21. The learned High Court judge referred to the definition of sentence contained in section 1(1) of the Act and expressed the view that it was “consistent with the classification of sentence as between their nature and duration.” He continued:
“It does not admit of a classification as between motivation, or appropriate sentencing principles, and the nature of the offence imposed.
I have concluded that the nature of the sentence imposed on Jonathon Caffrey is one of imprisonment for life. The motivation of the trial judge in setting a particular tariff in respect of personal deterrence and punishment does not change the nature of that sentence. In the event that an inadmissible motivation emerges from the sentencing remarks of a trial judge, this is a matter for correction by an appropriate appeal court. It does not change the nature of a sentence.”
22. The learned judge noted that “section 7(10) of the Act makes it clear that a reference to the legal nature of a sentence does not include a reference to the duration of such sentence.” He observed:” As to the nature of an offence, a sentence can generally differ in Ireland as between imprisonment, suspension, fine, forfeiture and community service.” Having referred in some detail to the provisions of the Convention, he thought that there was nothing in it to lead “to the conclusion that the nature of a sentence is changed by the motivation for imposing it, or the underlying rationale in administering it.” His view was that the sentence was one of life imprisonment and that “under Article 9.3., it is for the administering state to enforce it and “to take all appropriate decisions.”
23. The Respondent submits that the concept of “legal nature” relates to the actual inherent nature of the sentence, i.e. whether it is penal servitude, imprisonment or detention or something else. He relies on paragraph 50 of the Explanatory Report to the Convention, in particular, the statement that: “The administering State thus continues to enforce the sentence imposed in the sentencing State, but it does so in accordance with the requirements of its own penal system.”
24. In deciding this question, it is first necessary to determine the meaning of the term “nature of the sentence.” This is because both the Act and the Convention contemplate the possibility that a sentence imposed in the sentencing State may be incompatible with the law of the administering State. In those circumstances, the Convention envisages that the sentence may need to be adapted. Implicit in recognition of the possibility of an incompatibility and the need for adaptation is the proposition that a person should not be detained in serving an unlawful sentence. The legal system which determines possible incompatibility is necessarily that of the administering State, although it will need to look at the nature of the sentence which has been imposed, which has to be determined in accordance with the law of the sentencing state.
25. Section 1(1) of the Act defines the word “sentence” as meaning “any punishment or measure involving deprivation of liberty ordered by a court or tribunal for a limited or unlimited period of time on account of the commission of an offence…” The definition reflects exactly the definition in the Convention, save that it substitutes “the commission of an offence” for “a criminal offence.”
26. The introductory recitals to the Convention note that “foreigners who are deprived of their liberty as a result of the commission of a criminal offence should be given the opportunity to serve their sentences within their own society.” Plainly, the regime for transfer of sentenced persons applies only to persons serving sentences involving deprivation of liberty imposed by a court as punishment for the commission of a criminal offence. It does not apply to any other form of sentence. It does not apply to any form of pre-trial or extra-judicial detention.
27. Thus, one starts from the situation that the Act, applying the Convention, applies only to sentences of imprisonment imposed as punishment for crime.
28. From Article 2.2 of the Convention, it is clear that purpose of the transfer of a prisoner is “in order to serve the sentence imposed on him.”
29. The Convention contains two procedures whereby, to use a neutral word, a sentence imposed in the sentencing state may be modified. Article 10.2, which is reflected in section 7(4), (5) and (6) of the Act allows for the possibility of “adaptation” but only where the sentence is incompatible with the law of the administering State. Article 11, which has not been implemented in our law, allows for the conversion of a sentence. According to the Explanatory report of the Council of Europe on the Convention on the Transfer of Sentenced Persons, (ETS No. 112), under that procedure commonly called “exequatur” the sentence is converted and a new sentence substituted by the judicial or administrative authority of the administering State.
30. Article 10 is, of course, very closely reflected in the provisions of section 7 of the Act. Article 10.2 provides:
“If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, and adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.”
31. Neither the act nor the Convention provides any real guidance as to the meaning of "legal nature.” The suggestion in the Explanatory Report that it may relate to differences between penal servitude, imprisonment and detention is unhelpful. The only thing that is absolutely clear is that the sentences referred to involve "deprivation of liberty" imposed by way of punishment for crime.
32. The expression legal nature is one of the broad import. It is clear and is common case that it is distinct from the duration of the sentence. The fact that it is a life sentence relates to its duration, not to its nature. It seems clear, beyond any doubt or argument, that the sentence of life imprisonment which was imposed on the appellant is comprised of two distinct elements well-established and recognised in English law. There is a first period, 12 years in this case, called the tariff, which was imposed by way of retribution and general deterrence. That is the punitive element of the sentence. Following the expiry of the tariff period, a prisoner such as the appellant is, when detained in England, serving a part of the sentence which is justified exclusively on grounds of public protection, i.e. to prevent him from committing further crimes during the period of the detention.
33. That, it seems to me, relates to the “legal nature” of the sentence. With great respect to the learned trial judge, who was working without the benefit of the detailed account of English law provided by Mr David Pery Q.C., this is not a mere matter of the motivation of the sentencing judge. Any judge, including a judge in this jurisdiction, will take into account a range of considerations when imposing a sentence. A lengthy sentence may be imposed partly as punishment, partly as deterrent and may also take into account the continued danger the perpetrator presents to the public. It does not lead to a structured division of the sentence as is the case in English law. Where a sentencing judge specifies what is described as a minimum tariff, justified only by punitive considerations, the person sentenced will be considered as having fully served that aspect of his sentence and be eligible for parole, unless his further detention is justified for the protection of the public. That is, in my view, of the essence of the sentence.
34. There then remains the question whether such a sentence is compatible with Irish law. It is clear from a consistent line of authority that a sentence imposed for purely preventative reasons is never permissible. Murray C.J., in delivering the judgment of this Court in Lynch and Whelan v Minister for Justice, Equality and Law Reform and others [Supreme Court Unreported 14th May 2010] stated:
“Any convicted person on whom a sentence comprising a preventative element was imposed would be entitled to successfully appeal his sentence on that ground to the Court of Criminal Appeal or any such person who claimed that he was being detained in prison, by the executive or otherwise, as a form of preventative detention rather than punishment would be entitled to seek review of the lawfulness of that detention pursuant to Article 40 of the Constitution.”
On one interpretation, that judgment is authority for the proposition that a sentencing judge is not entitled to include, even as one among a number of elements in imposing sentence, consideration of the continuing danger to the public of the person being sentenced and the consequent need to protect the public by detaining him in prison. That is one possible interpretation of the judgment of Carney J in The People (Director of Public Prosecutions) v Bambrick [1996] 1 I.R. 265. That learned judge stated in the course of his decision on sentence, at page 270:
”If I were to protect the community and at the same time protect the accused from himself it would be necessary for me to sentence him to life imprisonment with the possibility of his release after a substantial punitive period had expired when, but only when, the Minister's expert advisors were fully satisfied that he no longer posed a danger or threat to any member of the community and women in particular. This is the approach which I would wish to take to the case.”
35. Following extensive review of a number of authorities, Carney J concluded that he was “precluded from approaching the case on the basis that over and above any considerations of punishment this dangerous accused should be preventively detained until in the opinion of the most qualified experts he is safe to be let back into the community.” He appears, in that passage, to have had in mind a sentence structurally divided into distinct components somewhat on the English model, where the prisoner would be detained after an initial punitive period, for the further purpose of protecting the public. It is unnecessary, for the purposes of the present appeal to decide whether an Irish court could include protection of the public as one of a number of unsegregated elements in a sentence, since it is plainly the case that, since March 2008, the appellant is detained solely to serve preventative considerations.
36. On the authority of Lynch and Whelan, his detention is unlawful and, as is clear from that case, he is entitled to apply to the Court pursuant to Article 40 of the Constitution for his release.
37. The Respondent submits, however, that an inquiry pursuant to Article 40.4.2 of the Constitution is not the appropriate remedy in the present case. The High Court warrant under which the appellant is detained and which the Respondent has produced to justify that detention is valid on its face. The appellant can only challenge it by means of proceedings to quash it. The Court was referred to: State (McDonagh) v Frawley [1978] 1 I.R. 131; McSorley v Governor of Mountjoy Prison [1997] 2 I.R. 258.
38. State (McDonagh) v Frawley concerned a prisoner, who had been duly convicted and sentenced. He complained in his Article 40 application that his detention was unlawful because he was not receiving proper medical treatment in prison. In that context, O’Higgins C.J. made the statement upon which the respondent places principal reliance at page 136 of the report:
“Where a person such as the prosecutor is detained for execution of sentence after conviction on indictment, he is prima facie detained in accordance with law and, as was held in the High Court by Maguire P. at p. 435 of the report of The State (Cannon) v. Kavanagh 4 , it would require "most exceptional circumstances for this Court to grant even a conditional order ofhabeas corpus to a prisoner so convicted.”
39. O’Higgins C.J. further explained that:
“The stipulation in Article 40, s. 4, sub-s. 1, of the Constitution that a citizen may not be deprived of his liberty save "in accordance with law" does not mean that a convicted person must be released on habeas corpus merely because some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law. For habeas corpus purposes, therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety, or even that jurisdiction has been inadvertently exceeded.”
40. Thus, as the then Chief Justice continued at page 137, “applications under Article 40, s. 4, are not suitable for the judicial investigation of complaints as to conviction, sentence or conditions of detention which fall short of that requirement.
41. In McSorley v Governor of Mountjoy Prison, a prisoner duly convicted and sentenced, complained of the failure of a judge who proposed to impose a custodial sentence to advise an accused of his constitutional right to legal aid, which the High Court held to amount to such a denial of justice as to render the conviction void. O’Flaherty J, giving judgment for this Court considered that there was a major problem in that that neither the District Judge nor the Director of Public Prosecutions had been given an opportunity of making a case in reply, which constituted “a fundamental breach of the requirement of audi alteram partem .” He thought that “in the circumstances of a case such as this where the District Judge’s conduct of the proceedings is called into question the correct course for the learned High Court Judge to have followed would have been to give leave to apply for judicial review in such a manner that the District Judge and the Director of Public Prosecutions would have been given an opportunity to make their observations.” (See page 263). O’Flaherty J was at pains to distinguish the judgment of this Court in Sheehan v District Judge Reilly and others [1992] 2 I.R. 81.
42. In Sheehan v District Judge Reilly, there was an application for an inquiry under Article 40 into consecutive sentences of imprisonment imposed in the District Court, which appeared in the aggregate to exceed the statutory limits of that court’s sentencing powers. Finlay C.J., speaking for an unanimous Court expressed the view that the application made in that case should “have been regarded as an application for an inquiry as to the legality of the detention of the applicant pursuant to Article 40, s. 4, sub-s. 2 of the Constitution.” He continued, at page 89:
“Such an application in its urgency and importance must necessarily transcend any procedural form of application, for judicial review or otherwise. Applications which clearly, in fact, raise an issue as to the legality of the detention of a person must be treated as an application under Article 40, no matter how they are described. Upon the making of such an application to a judge of the High Court, that judge has got a jurisdiction and a discretion, in my view, even prior to reaching a conclusion that a sufficient doubt as to the legality of the detention of the applicant has been raised to warrant calling upon the jailor or detainer of the applicant to show cause, to make inquiries of a speedy and, if necessary, informal nature to try and ascertain the facts.”
43. The courts will regard it as an inappropriate use of the procedure pursuant to Article 40.4.2 of the Constitution to make complaints about the details of the procedure leading to imprisonment imposed in the State under a warrant apparently good on its face. In such cases, it may be necessary to institute proceedings to set aside the underlying convicction or sentence. The Article 40 procedure is designed to provide a remedy in cases of fundamental illegality in the detention.
44. In the present case, the warrant of the High Court under which the appellant is detained by the respondent discloses that he is held for the purpose of serving a sentence of life imprisonment imposed by an court in the United Kingdom. Under section 7(4) of the Act of 1995, the effect of the warrant is to “authorise the continued enforcement by the State of the sentence concerned imposed by the sentencing state concerned in its legal nature and duration…” The “legal nature” of the sentence depends on the law of the sentencing state. This Court has caused inquiry to be made into the “legal nature” of the sentence. The result of that inquiry is that the appellant’s continued detention is exclusively for a purpose which is not compatible with Irish law.
45. In those circumstances, the appellant is in my view not lawfully detained. An application pursuant to Article 40 is appropriate. I would allow the appeal and order his release.
