Judgment Title: Sweeney -v- Governor of Loughan House Open Centre & ors
Neutral Citation:  IESC 42
Supreme Court Record Number: 105/2014
High Court Record Number: 2012 270 JR
Date of Delivery: 03/07/2014
Court: Supreme Court
Composition of Court: Denham C.J., Murray J., Hardiman J., Clarke J., MacMenamin J.
Judgment by: Murray J.
Status of Judgment: Approved
THE SUPREME COURT
[Appeal No: 105/14]
Govenor of Loughlan House Open Centre, The Minister for Justice & Law Reform, Ireland and The Attorney General
JUDGMENT of Murray J. delivered the 3rd day of July, 2014.
1. The appellant in this case was convicted of serious drug offences in the United Kingdom on the 7th December, 2006. He was sentenced to what has been described as 16 years imprisonment by a court in England with the consequence, under English law, that one half only of the 16 years would be served in custody, and one half served on release on licence in the community. In December, 2008 he consented to his transfer to this country in accordance with the Transfer of Sentenced Persons Act, 1995, as amended, and had since then continued to serve the remainder of his prison sentence or period of “deprivation of liberty” in this country. The issue in this case turns on what date must be treated as the expiry date of his custodial sentence within the meaning of the Act of 1995, and the Convention on the Transfer of Sentenced Persons.
2. While serving his sentence of imprisonment in an English prison the appellant sought to serve the balance of his sentence in Ireland, in accordance with the provisions of the Council of Europe Convention on the Transfer of Sentenced Persons (hereinafter referred to as the “Convention”). The appellant was transferred from the United Kingdom to Ireland on the 16th December, 2008 for the purpose of serving the balance of the English court’s sentence imposed on him. The authority to detain him in the country for that purpose stems from a warrant to that effect issued by the High Court on the application of the Minister. The warrant was issued in accordance with s.7(1) of the Transfer of Sentenced Persons Acts, 1995, as amended by an Act of the same title in 1997 (hereinafter “the Act”). Pursuant to s.7(4) of the Act that warrant has the same force and effect as a warrant imposing a sentence following conviction by a court in Ireland insofar as it authorises the continued enforcement in Ireland of the sentence imposed in the foreign State “with due regard to any remission of sentence accrued in the sentencing State”. (Section 7(4) of the Act). This refers to remission already accrued prior to transfer and has no bearing on any question of remission which might accrue subsequent to the prisoner’s transfer.
3. The appellant seeks, by way of judicial review, a declaration that the warrant issued by the High Court on the 22nd October, 2008 was ultra vires the provisions of the Act, and the principles contained in the Transfer Convention.
Submissions of the Appellant
5. The appellant relied on evidence as to English law concerning the duration and legal nature of the sentence imposed upon him, including the evidence contained in an affidavit filed on behalf of the Minister, as well as the affidavit as to English law filed on behalf of the appellant himself. The evidence, it was contended, confirmed that the duration of the sentence, within the meaning of the Act, was one of 8 years deprivation of liberty and no more, the remainder of the sentence to be served at liberty in the community under strict conditions. Accordingly, the 29th March, 2014 must be treated as the date of expiry of his sentence, as defined by the Act.
Arguments of the Respondents
7. The Minister argued that the sentence imposed by the English court was one of 16 years imprisonment, and so described by the sentencing court. The State was obliged under the terms of both the Transfer Convention and the Act to give effect to that sentence in accordance with Irish law. This meant that his 16 years sentence of imprisonment was subject only to remission in accordance with Irish law, namely, 25% of the sentence on the grounds of good behaviour. Accordingly, the sentence of the appellant would, under Irish law applied in accordance with the Transfer Acts and the Convention, expire in December, 2022. Assuming that he would be regarded by the Minister as being entitled to full remission on the grounds of good behaviour the envisaged a date of release in this country would be the 12th day of December, 2016.
8. In this context counsel for the Minister pointed out that the Convention (and the Act) requires that “the administering state shall be bound by the legal nature and duration of the sentence as determined by the sentencing state.” (Article 10 of the Convention). It was acknowledged that both the Convention and the Act prohibit any aggravation of the nature or duration of the sentence imposed in the sentencing state.
9. A key element in the Minister’s submissions was that while the duration and legal nature of the sentence was determined by the sentencing court in accordance with the law of the sentencing state, the enforcement or administration of the sentence in this country was governed exclusively by the law of the administering state, in this case, Ireland. The provisions of the Convention and of the Act expressly exclude enforcement or administration of a sentence being carried out other than in accordance with the law of the administering state, and it would be unworkable to require such a state to administer or enforce a sentence in accordance with the law of the sentencing state given that the Convention has been ratified by a total of 64 different states all with their own sentencing regimes.
10. In this case the English court had imposed on the appellant a sentence of 16 years imprisonment. The fact that he was entitled to be released after 8 years imprisonment but subject to recall did not take away from the fact that it was a sentence of 16 years. Apart from the fact that there is no provision in Irish law for the release or recall of the appellant in accordance with the terms of the English sentencing regime should he be released after the 8 years period of custody, 16 years imprisonment now falls to be enforced and administered in accordance with Irish law exclusively.
12. As was submitted on behalf of the Minister, the “difficulties in this case go to the very substance of the sentence imposed by the English Court.”
13. While ancillary issues arose in the High Court, for example, concerning the nature and import of information and documents provided to the appellant on foot of which he agreed to be transferred, and whether he had, in fact, received all those documents, I am of the view that in the final analysis, for reasons explained in this judgment, the outcome of this case depends entirely on an objective determination as to the legal nature and effect of the sentence imposed by the court in England in accordance with the English statutory regime.
14. Before addressing that issue it is appropriate at this point to refer, strictly so far as relevant, to the terms of the Transfer Convention and the Act, as amended.
Convention on the Transfer of Sentenced Persons
16. Of particular importance is the definition of “sentence” in Article 1 which is defined as meaning:
17. The common thread, however, for all transfers irrespective of the sentencing regime is that the person is serving a sentence within the meaning of the Convention, namely, a period of “deprivation of liberty ordered by a court”.
18. Article 3 provides for the general conditions transfer, which in general terms requires that the person is a national of the administering state, that he or she, and both the sentencing and administering states, consent or agree to the transfer. Nothing turns on the conditions for transfer.
19. The essential obligations of the administering state, in this case Ireland, are set out in Article 9(1) of the Convention. This obligates the administering state to “continue the enforcement of the sentence … under the conditions set out in Article 10”. Alternatively, the administering state may “convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.” No question of conversion of the sentence arises in this case (Ireland not having made any provision in its law for such an option).
20. Article 9.3 provides that the enforcement of the sentence shall be governed by the law of the administering state and that state alone shall be competent to take all appropriate decisions for that purpose. (This, as the State have argued in this case, includes the application of Irish law governing any remission of sentence).
21. In this case we are concerned with the continued enforcement of the sentence imposed in the United Kingdom on the appellant. As counsel for the State have pointed out the effect of Article 9.1 is that the State must fully enforce the sentence as imposed on the appellant in the sentencing state, subject to its enforcement being governed by Irish law. However, an important condition concerning continued enforcement of a sentence is contained in Article 10.1 which provides:
22. Although it does not directly arise in this case it is important to note that Article 10.2 provides as follows:
It is also common case that if the Minister had considered that the sentence imposed, in this instance by the English sentencing court, was in a form incompatible with our law he could have applied to the High Court to adapt the sanction or punishment, as envisaged by Article 10.2 of the Convention above and, indeed, as provided for in s.7(5) of the Act of 1995. The Minister did not consider that there was or is any incompatibility between the sentence imposed by the English court in this instance and the law of the State. Accordingly, the question of adaptation of the sentence does not either arise.
24. Prior to the appellant’s transfer to this country, the British authorities, before consenting to the application for transfer, were informed by the Irish authorities, in accordance with Article 6 of the Convention, that in the appellant’s case the “continued enforcement” procedure would be followed in accordance with Article 10.
Transfer of Sentenced Persons Act, 1995 and 1997
26. Section 1(1) of the Act of 1995 defines the term “sentence” in the same manner as the Convention, namely, 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;” (emphasis added). A “sentenced person” means a person on whom such a sentence has been imposed.
27. Section 6 of the Act contains the principal provisions regulating the implementation of the Convention, namely, the transfer of a sentenced person to this country to continue serving a sentence imposed in the sentencing state, once the appropriate criteria have been fulfilled. This section also makes provision for ensuring that all reasonable steps have been taken to provide information to the sentenced person concerning the import of a transfer to Ireland as required by the Convention.
28. Section 7(1) makes provision for the Minister, who has consented to a request for a transfer, to apply to the High Court for the issue of a warrant authorising the bringing of the sentenced person concerned into the State from a place outside the State and the taking of the person to, and his or her detention in custody at, such place or places in the State as may be specified in the warrant.
This is what was done in this case. A warrant was duly issued by the High Court in respect of the appellant in this case. Sub-section 4 of Section 7 provides that 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.”
29. It has been emphasised on the part of the Minister that indeed what occurred here in respect of the appellant is the continued enforcement by the State of the sentence imposed by the sentencing state.
(b) The appellant’s transfer to prison in this country was for the purpose of the “continued enforcement” of his English sentence to which the State is required to give full effect;
(c) The “enforcement” or “administration” of the sentence is, however, governed by the law of the administering State so that, for example, any remission of the sentence on the grounds of good behaviour is governed by Irish law and not English law;
(d) Although the parties differed crucially on the length of the sentence of actual imprisonment that was imposed in this case, it was also common case that the sentence enforced could not be longer than the sentence imposed in the sentencing state.
Decision of the Sentencing Court
34. It is now necessary to turn to English law for a full understanding of the nature of the sentence which was imposed on the appellant. For this purpose it is necessary to have regard to the evidence concerning English law which was before the High Court, and in particular the evidence given, on affidavit, by Mr. David Perry, Q.C. His affidavit was filed on behalf of the Minister and was relied on by the appellant as well as the affidavit sworn by the appellant’s own English lawyer, Mr. Kenneth Carr. It seems to me sufficient to refer to the evidence as to English law given by the Queen’s Counsel relied upon by the Minister.
35. At paragraph 8 of his affidavit he addresses the nature of the sentence imposed on the appellant. He makes the following statements:
b. Had Mr. Sweeney remained in custody in England, he would have been required to serve half his sentence in custody. The remaining period would have been spent on licence in the community.
c. It is the duty of the Secretary of State to release a prisoner at half-way point in his sentence. A failure or refusal to do so would be unlawful.”
37. Logically, counsel goes on to say at the next paragraph, paragraph 9 of his affidavit, that the appellant would have served 8 years in custody. “He would have been released on licence (subject to conditions) on 29 March, 2014.” That is after a period of 8 years allowance having been made for his pre-sentence period in custody. The fact that the whole sentencing package, so to speak, has been referred to as a sentence of 16 years imprisonment cannot detract from, or prevent, an objective assessment of its duration and legal nature. As Lord Bingham pointed out in the citation referred to below, it is the legal implications of any sentence which counts.
38. Another relevant feature of counsel’s evidence is that English law makes no provision for any remission for this kind of sentence.
39. Moreover, at paragraph 28 of his affidavit he says that the effect of the relevant provisions of the Act of 2003, referred to above, “is that all prisoners sentenced to a determinate term of 12 months or more are entitled to automatic release on licence at half-way point of their sentence.”
40. Earlier in his affidavit, at paragraph 21, he drew a parallel between the legal effect of the current English sentencing regime, automatic release after one half of the custodial sentence has been served, with an earlier regime of automatic release after two-thirds of a sentence had been served. He referred to the case of R (Smith) v. Parole Board  1 WLR 3550 where Lord Bingham addressed the nature of a custodial sentence which gave rise to an automatic right to release before the full sentence term was completed. He cites from the decision of Lord Bingham (at paragraph 24) in the following terms:
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.
46. The Court, having heard the parties in this case at a hearing of the appeal on the 28th May, 2014, decided that the appellant’s appeal should be allowed, and that reasons for the decision would be given at a later date.
47. For the above reasons I concluded that the appeal of the appellant should be allowed and that the Court should make the necessary declaration that he was not entitled to be detained on foot of the High Court order in question as and from the expiry of the first half of his sentence, namely, the 8 year period.