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Cite as: [2015] IECA 89
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Judgment
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THE COURT OF APPEAL Neutral Citation Number: [2015] IECA 89
Record No.: 2014/37 Peart J. Hogan J. Mahon J. IN THE MATTER OF THE
EUROPEAN ARREST WARRANT ACT 2003 BETWEEN/ MINISTER FOR JUSTICE AND EQUALITY RESPONDENT -AND-
ANTHONY CRAIG APPELLANT JUDGMENT of Mr. Justice Gerard Hogan delivered on the 21st of May 2015 1. In this appeal this Court is required to consider and determine the following question as certified by the High Court (Edwards J.), namely:
3. In the present case, it is common case that the respondent, Mr. Craig, was convicted of murder in 1974. His life sentence contained an order that he serve a minimum term of 15 years imprisonment. This minimum period is known as “the tariff.” In the present case, the warrant emanating from the UK authorities helpfully recites that:
An independent Parole Board conducts a review of the prisoner’s sentence once the punitive element of the sentence is expired. A judge chairs this panel. An oral hearing can take place to determine whether the prisoner’s detention should continue. The Parole Board must decide whether it is necessary for the protection of the public for the prisoner’s detention to continue. At this hearing the prisoner has the right to be present, to be legally represented and to call and question witnesses. The Parole Board can direct the release of the prisoner. If it decides that the prisoner should not be released then a further hearing will take place within two years to review the prisoner’s detention and at regular intervals thereafter.” 5. In the High Court, Edwards J. examined these submissions in great detail and delivered an extremely thorough, comprehensive and illuminating judgment on 31st July, 2014: see Minister for Justice and Equality v. Craig [2014] IEHC 460. On 18th November, 2014, Edwards J. nonetheless certified the question set above for consideration by this Court. Section 37(1)(b) of the European Arrest Warrant Act 2003
(b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the reason that the offence specified in the European arrest warrant is an offence to which section 38(1)(b) applies).”
(a) the offence corresponds to an offence under the law of the State, and (i) under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months, or (ii) a term of imprisonment or detention of not less than 4 months has been imposed on the person in respect of the offence in the issuing state, and the person is required under the law of the issuing state to serve all or part of that term of imprisonment or (b) the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies or is an offence that consists of conduct specified in that paragraph, and under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than 3 years.” The Supreme Court decisions in Brennan and Stapleton 10. The Supreme Court nonetheless re-emphasised the point which it had made in its earlier decision in Minister for Justice v. Altaravicius [2006] IESC 23, [2006] 3 IR 148, namely, that the 2003 Act must be interpreted in the light of the objectives of the Framework Decision. The recitals in the preamble to that Decision make it clear that one of the objectives of the new procedure is “to remove the complexity and potential for delay inherent” in the pre-existing extradition arrangements between the Member States. Recital 6 (and, for that matter, Article 1(2)) acknowledges that the European arrest warrant procedure is founded on the principle of mutual recognition of judicial decisions, and Recital 10 emphasises that this procedure is grounded “on a high level of confidence between Member States.” 11. It was against that background that the Supreme Court stressed that the residual power to refuse surrender contained in s. 37(1)(b) of the 2003 Act must be understood. It is plain that the Court considered that this provision was a residual power which was to be confined to exceptional cases. As Murray C.J. stated ([2007] 3 IR 732, 743), it could not constitute a breach of the Constitution to effect a surrender “simply because [the foreign] legal system of trial differed from ours as envisaged by the Constitution.” The Chief Justice then continued ([2007] 3 IR 732, 743):
The manner, procedure and mechanisms according to which fundamental rights are protected in different countries will vary according to national laws and constitutional traditions. The checks and balances in national systems may vary even though they may have the same objective, such as ensuring a fair trial. There may be few, if any, legal systems which wholly comply with the precise exigencies of our Constitution with regard to these matters. Not all for example will provide a right to trial by jury in exactly the same circumstances as our Constitution does in respect of a trial for a non-minor offence. Rules of evidence may differ. The fact that a person would be tried before a judge and jury in this country for a particular offence could not, in my view, be a basis for refusing to make an order for surrender solely on the grounds that in the requesting State he or she would not be tried before a jury. The exceptions which we have to the jury requirement, as in trials before the Special Criminal Court, acknowledges that a fair trial can take place without a jury even though it is constitutionally guaranteed for most trials in this country. That is not by any means to say that a court, in considering an application for surrender, has no jurisdiction to consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights. There may well be egregious circumstances such as a clearly established and fundamental defect in the system of justice of a requesting State where a refusal of an application for surrender may be necessary to protect such rights. It would not be appropriate in this case to examine further possible or hypothetical situations where this might arise. The sole matter which I wish to make clear here is that the mere fact that a trial or sentence may take place in a requesting State according to procedures or principles which differ from those which apply, even if constitutionally guaranteed, in relation to a criminal trial in this country does not of itself mean that an application for surrender should be refused pursuant to s. 37(2) of the Act.” 13. In his judgment for the Supreme Court, Fennelly J. observed that the principle of “mutual confidence” in the respective legal systems was broader and went further than the systems of mutual political and judicial trust which had been contained in the European Convention on Extradition 1957 and, in our own legal system, the Extradition Act 1965, as it ([2008] 1 IR 669,689) “encompasses the system of trial in the issuing member state.” 14. Fennelly J. further noted that the question of whether there had been any undue delay could be best resolved within the context of the legal system of the requesting state. The mere fact that there was a difference in criminal procedure between the two jurisdictions was not in itself enough. Fennelly J. then stated ([2008] 1 IR 669, 691-692):
On the facts of this case, there is available to the respondent a procedure which will enable him, on surrender to the issuing Member State to seek a remedy based on the very long period of time which has elapsed since the alleged commission of the offences. Moreover, on the facts of the case, it is demonstrably more efficient and more convenient that those matters be debated before the courts of the country where the respondent is to be tried. The prosecuting and police authorities as well as other witnesses are available to and amenable to the jurisdiction of the courts of that country. Documentary evidence, of the type demanded by the respondent, will be more readily available there. If not, its absence may be more readily explained. There may, in addition, be arguments or points of domestic law, whether based on precedents or otherwise, which the respondent can advantageously argue or rely upon which may not be available to him in this jurisdiction and of which an Irish court might not necessarily be aware.” Would the very act of surrender amount ex facie to an unconstitutionality?
18. This, in practice, is probably little different from decisions which successive Ministers for Justice in this jurisdiction have taken in respect of persons convicted of murder and serving the mandatory life sentence prescribed by s. 2 of the Criminal Justice Act 1990 (“the 1990 Act”). Indeed, counsel for the Minister, Mr. McGuinness S.C., helpfully put before the Court statements from our own Parole Board which bear this out. Thus, for example, in its Annual Report 2012 at p.5 the Parole Board stated in the case of life sentenced prisoners that:
20. These claims were rejected by the Supreme Court, with Murray C.J. stressing that the life sentence prescribed by s. 2 of the 1990 Act was wholly punitive in nature and does not - save, perhaps, in an incidental way - contain any element of preventative detention. The Court further stressed that preventative detention as a feature of sentencing was unconstitutional and that any sentence so providing would have to be set aside. In this regard, the Court expressly contrasted the two different regimes obtaining in both the UK and Ireland in the context of both the constitutional challenge and the challenge under the 2003 Act. 21. So far as the constitutional challenge was concerned, Murray C.J. rejected the argument that either the power to grant temporary release or the executive power of remission of sentence was tantamount in substance to an acknowledgment that there came a point where the life sentence ceased to be punitive and that the Minister was, in reality exercising a function of determining whether it was safe to release the prisoner from a form of preventative detention. As the Chief Justice stated ([2012] 1 IR 1, 23-27):
In The People (The Director of Public Prosecutions) v. Jackson (Unreported, Court of Criminal Appeal, 26th April 1993) Hederman J., said … “It is submitted on behalf of the applicant that what in fact the Central Criminal Court did in this instance was that it imposed a preventative sentence on the accused, a sentence of life in order, as the trial judge said, to protect women from the applicant. The Court is satisfied that preventative detention is not known to our judicial system and that there is no form of imprisonment for preventative detention.” The fact that the Constitution has been amended with regard to the grounds for refusing bail for a person awaiting trial does not affect the principle that a convicted person may not be sentenced by a court or detained by an executive order for a preventative or non punitive purpose… In the Court’s view a life sentence imposed pursuant to s. 2 of the Act of 1990 is a sentence of a wholly punitive nature and does not incorporate any element of preventative detention. It is a sentence which subsists for the entire life of the person convicted of murder. That person may, by virtue of a discretionary power vested in the executive, be temporarily released under the provisions of the relevant legislation on humanitarian or other grounds but he or she always remains liable to imprisonment on foot of the life sentence should the period of temporary release be terminated for good and sufficient reason. It may be appropriate at this point to note that in the event of a prisoner’s privilege of temporary release being withdrawn by virtue of a breach of the conditions of that release the Minister, or any person acting on his behalf, is bound to observe fair procedures before withdrawing the privilege of temporary release as was held by this Court in The State (Murphy) v. Kielt [1984] 1.R. 459 and Dowling v. Minister for Justice, Equality & Law Reform. Should the Minister fail to observe such procedures or otherwise act in an unlawful, arbitrary or capricious manner in terminating the release for a breach of his conditions or otherwise, the prisoner may seek to have that decision set aside by way of judicial review before the courts. In all these circumstances the Court does not consider that there is anything in the system of temporary release which affects the punitive nature or character of a life sentence imposed pursuant to section 2. In particular, a decision to grant discretionary temporary release does not constitute a termination let alone a determination of the sentence judicially imposed. Any release of a prisoner pursuant to the temporary release rules is, both in substance and form, the grant of a privilege in the exercise of an autonomous discretionary power vested in the executive exclusively in accordance with the constitutional doctrine of the separation of powers… Finally, on this aspect of the matter the appellants have attached significance to the fact that in exercising his power to grant temporary release under s. 2 of the Act of 1960 the Minister must, inter alia, have regard to the gravity of the offence and the potential threat which the person’s release might pose to the safety of members of the public (including the victim of the offence for which he was imprisoned). That does not mean that the Minister is exercising a judicial function when making such a decision and in particular it does not mean that a decision not to release because of a risk of safety to the public converts the punitive sentence for murder into a preventative one. The Act specifies a range of grounds upon which a Minister may consider granting temporary release. They include preparing him for release upon the expiration of his sentence, the re-integration of a rehabilitated prisoner in society, release on grounds of health or other humanitarian grounds. It is a necessary incident to the exercise of a purely executive discretion that the decision-maker would be bound to have, before directing a person’s release on any of the possible grounds, regard to a whole range of matters of which some twelve are specified in s. 2 subs. 2 of the Act of 1960. Inevitably two of those considerations which ought to be taken into account in the making of any such decision are the gravity of the offence and the risk which the temporary release would pose to the public. A decision to grant temporary release even for a short period such as to permit a prisoner to attend a family funeral would necessarily involve a consideration of any potential risk that that would have for the safety of members of the public. Such a consideration is incidental to the discretionary power and its purpose. It is not a decision on the sentence to be served. Refusing temporary release is a decision not to grant a privilege to which a prisoner has no right. Any such decision or policy on which it is based must serve the purpose or objects of the provision of the Act of 1960 only. It cannot be seen in any sense as converting a subsisting punitive sentence into some form of preventative detention.”
The relevant part of the Convention provides: "(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” The Court reiterates that it is important to take account of the fundamental distinction between the sentence imposed by a court pursuant to s.2 of the Act of 1990 and any subsequent decision by the Minister to grant temporary release pursuant to the Act of 1960. The [appellants] were quite correct in submitting, as they did in relation to the constitutional issue, that the Court should not look simply at the formal provisions of the law but at the substance and effect of the law in practice concerning the sentence imposed on a convicted person. In this context the [appellants] attached significant importance to a number of decisions of the European Court of Human Rights which concerned the sentencing regime in England particularly as applied in the case of life sentences, including mandatory life sentences. The Court will make reference to those cases later in the judgment but for present purposes it is sufficient to state that the relevant sentencing regime in England and Wales at least means that a life sentence comprises of a punitive period (“the tariff”) and, when the “tariff” or punitive period has expired, a subsequent period of preventative detention. That is not and could not be the position in law in this country as has already been explained in the part of the judgment addressing the constitutional issues.” (emphasis supplied) 24. This is also strongly re-enforced by the Supreme Court’s even more recent decision in The People (Director of Public Prosecutions) v. Daniels [2014] IESC 64, [2015] 1 I.L.R.M. 99. In this case a young offender received a life sentence for the attempted murder of a ten year old girl, even though he had pleaded guilty and was a first time offender. The Court rejected the argument that the sentence so imposed amounted to preventative detention. The Court nevertheless re-affirmed the principle that preventative detention of this kind would be unconstitutional, with Dunne J. stating ([2015] 1 I.L.R.M. 99, 104-105):
“It is one thing to say that the principle of proportionality precludes the imposition of a sentence beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention which is impermissible and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.” Thus, preventative detention as an element of sentencing above and beyond what is appropriate to the particular offences or offences having due regard to the personal circumstances of the offender is not permissible.” 26. This application was rejected by a majority of the Supreme Court. In her judgment for the majority, Denham C.J. distinguished between the sentence of life imprisonment imposed by the English court on the one hand and the administration of that sentence on the other hand. The sentence remained one of life imprisonment and the fact that there was “a twelve year tariff does not change the nature of the sentence.” What was critical was that the sentence was now being administered by reference only to Irish law ([2012] 1 I.R. 637, 652):
The [appellant] is serving a valid sentence of imprisonment for life, in Ireland. The management of that sentence is now governed by Irish law. The management scheme adopted in England is no longer relevant. Irish authorities could not apply the English law. It is inappropriate for the Irish State to make reference to any minimum period in the United Kingdom within which the [appellant] would be denied parole review. In this case, no issue of inappropriate considerations on the part of the State that detrimentally affect the [appellant] arise because the [appellant] was considered twice by the Parole Board before the twelfth year of his sentence, i.e., the Parole Board did not manage the sentence according to English practice, but managed his sentence in accordance with Irish law. I am satisfied that this is the correct approach in law to the management of the [appellant’s] life sentence.” (emphasis supplied) 28. It is in the analysis of Caffrey that I find myself in disagreement with Edwards J. He said:
39. In circumstances where the Supreme Court has also held in the conjoined cases of Lynch and Whelan … that the mandatory life sentence as we know it is a sentence of a wholly punitive nature and does not incorporate any element of preventative detention, this Court must inevitably conclude that, notwithstanding the tariff period that was fixed by the trial judge in the respondent’s case, the life sentence imposed upon the respondent by Preston Crown Court was also, in its legal nature, a sentence of a wholly punitive nature that does not incorporate any element of preventative detention. “ 30. Returning now to the judgment in Caffrey, it should also be noted that the dissent of Fennelly J. (with whom Murray J. agreed) is also of considerable interest. He stressed the different nature of the UK sentencing regime as compared with our own ([2012] 1 I.R. 638, 661-662)
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 [2012] 1 IR 1, 29-30 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, 270. That learned judge stated in the course of his decision on sentence: “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.” 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. 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.” Is there a clear nexus between the act of surrender and the unconstitutionality such as would trigger the application of s. 37(1)(b) of the 2003 Act? 33. The decision of Edwards J. in Minister for Justice and Equality v. Shannon [2012] IEHC 91 provides a good example of this approach. In that case the respondent maintained that his surrender to the United Kingdom would violate s. 37(1)(b) of the 2003 Act by reason of the fact that, if surrendered, he would face trial under a regime where evidence of his previous convictions could be introduced with relative freedom. Following the approach of the Supreme Court in Brennan and Stapleton, Edwards J. rejected that argument, saying at para. 65 that for this argument to succeed it would have been necessary for the respondent to demonstrate that there would be an “egregious breach of his rights amount[ing] to a fundamental defect in the system of justice in the issuing state.” 34. By contrast, the act of surrender in the present case would immediately deliver up the appellant into a form of preventative detention which, as the authorities make clear, is ex facie a form of unconstitutional detention. Accordingly, therefore, by reason of the two Supreme Court decisions in Lynch and Whelan and Daniels I find myself coerced to the conclusion that the surrender of the appellant to serve out the balance of the life sentence would - given that he has already long served the punitive element of that sentence as reflected in the tariff - be contrary to s. 37(1)(b) of the 2003 Act. 35. I also think that this conclusion is underscored by the Supreme Court’s decision in Minister for Justice and Equality v. Nolan [2013] IESC 54, albeit that this decision deals with the parallel provisions of s. 37(1)(a) of the 2003 Act dealing with the State’s obligations under the European Convention of Human Rights. In that case the applicant was facing surrender to the UK to serve out the balance of a sentence. Aspects of that particular sentencing regime had already been held by the European Court of Human Rights to be contrary to Article 5.1 of the European Convention of Human Rights insofar as it provided for detention beyond the tariff stipulated by the trial judge: see James v. United Kingdom [2012] ECHR 1706, (2013) 56 EHRR 12. (While there are similarities between the regime applicable to that case and the regime which is applicable in the present case, it is not suggested in the present case that this particular UK post-tariff detention regime violates Article 5.1 ECHR). 36. The Supreme Court held that to surrender the applicant in these circumstances would amount to a breach of s. 37(1)(a)(i) of the 2003 Act since it would be contrary to this State’s obligations under the European Convention of Human Rights. In effect, therefore, the Court refused to effect the surrender of the respondent where he would be delivered up to complete the balance of a sentence which had been held to be non-ECHR compliant. 37. Of course, s. 37(1)(a) of the 2003 Act is a parallel provision to s. 37(1)(b), save that the former deals with the ECHR and while the latter deals with the Constitution. It can nevertheless be said that, by direct analogy with the Supreme Court’s decision in Nolan, if the respondent were to be returned to face a substantive sentence which, if applied here, would contravene the Constitution, then in those circumstances likewise an order for surrender should not be made under s. 37(1)(b) of the 2003 Act. 38. I cannot say that I reach this conclusion with enormous enthusiasm, since I recognise that, as Lord Hope pointed out in Pilecki, it was not really the intention of the drafters of the Framework Decision that sentencing practices in the various Member States should have to change to accommodate the fundamental values of the requested State. One may also agree that the Framework Decision did not envisage that a particular and distinctive Irish perspective on human rights and personal liberty as reflected in Article 40.4.1 of the Constitution should - albeit indirectly - be imposed on other Member States, not least our nearest neighbours in the United Kingdom with whose legal system we have so much in common. Nor can I overlook the fact that the respondent is a UK domiciliary who committed the crime of murder in the UK and who, in effect, has taken refuge in this State. 39. I must also acknowledge the force of majority judgment which has just been delivered by Peart J. Attractive as that argument is, I dissent only because I consider that the form, structure and substance of the British sentencing regime for life sentenced persons would compromise fundamental constitutional values by providing for a form of preventative detention and that, by analogy with the Supreme Court’s decision in Nolan, the very act of surrender for that purpose would amount in itself ex facie to an unconstitutionality. It is in these particular and unusual circumstances that I am compelled to say that this would be contrary to s. 37(1)(b) of the 2003 Act. Conclusions |