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S. v Minister for Justice (Transfer Of Sentenced Person) (Approved) (Rev 2) [2020] IEHC 632 (11 December 2020)
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[2020] IEHC 632
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NO FURTHER REDACTION REQUIRED
APPROVED
[2020] IEHC 632
THE HIGH COURT
JUDICIAL REVIEW
2020 No. 462 J.R.
BETWEEN
S.
APPLICANT
AND
MINISTER FOR JUSTICE
RESPONDENT
DIRECTOR OF THE CENTRAL MENTAL HOSPITAL
NOTICE PARTY
JUDGMENT of Mr. Justice Garrett Simons delivered on 11 December 2020
INTRODUCTION
1. The principal question for determination in these proceedings is as follows. Can
a person who is detained in the Central Mental Hospital following a special
verdict of "not guilty by reason of insanity" be characterised as a "sentenced
person" for the purposes of the Transfer of Sentenced Persons Act 1995. If the
answer to this question is "yes", then such a person is eligible to be transferred
to another Convention State in order to serve the balance of their "sentence" (as
defined).
2
2. The applicant had been tried for an offence of dangerous driving causing death,
and the jury returned a special verdict to the effect that the applicant was not
guilty by reason of insanity. The applicant is currently detained in the Central
Mental Hospital. The parties are all in agreement that it would be in the best
interests of the applicant were he to be transferred to his home country of
Germany. The parties are also agreed that the applicant is eligible for transfer
under the terms of the Transfer of Sentenced Persons Convention itself ("the
Convention").
3. The dispute between the parties centres on whether the Convention has been
properly implemented into domestic law. Remarkably, the Minister for Justice
invites this court to adopt a restrictive approach to the interpretation of the
domestic legislation, with the consequence that the applicant would be rendered
ineligible for transfer. The logic of the position adopted by the Minister is that,
as a result of legislative amendments introduced in 2006, domestic law is no
longer fully compliant with the Convention.
4. The Minister's submission that the domestic legislation should be given a
restrictive interpretation is all the more surprising given that the adequacy of the
Irish State's legislative regime governing the transfer of sentenced persons is to
be the subject of infringement proceedings. More specifically, the European
Commission has publicly announced its decision to refer Ireland to the European
Court of Justice for failing to transpose Council Framework Decision
2008/909/JHA of 27 November 2008. The Framework Decision replaced the
corresponding provisions of the Convention with effect from 5 December 2011
insofar as transfers between Member States of the European Union are
concerned.
3
FACTUAL BACKGROUND
5. The applicant had been charged with an offence of dangerous driving causing
death, and was tried before a judge and jury in the Circuit Criminal Court. The
jury returned a special verdict, finding the applicant not guilty by reason of
insanity pursuant to section 5(1) of the Criminal Law (Insanity) Act 2006.
Relevantly, such a special verdict entails a finding by the jury that the accused
person committed the act alleged against them but that they ought not to be held
responsible for the act because they were suffering at the time from a mental
disorder.
6. Thereafter, the trial judge made a finding, in accordance with section 5(2) of the
Act, that the applicant was suffering from a mental disorder (as defined), and
required in-patient care and treatment. (The applicant has a diagnosis of
schizophrenia). The trial judge then made an order committing the applicant to
a specified designated centre, namely the Central Mental Hospital.
7. As required under section 13 of the Act, the applicant has been subject to
periodic reviews by the Mental Health (Criminal Law) Review Board. On each
occasion, the Review Board's decision was that the applicant still fulfilled the
criteria for detention, and the board ordered that his detention continue pending
further review.
8. The applicant is a German national, and had moved to Ireland in 2014. The
applicant is married, with one child. His wife remains supportive but has had to
move back to Switzerland with their child for her employment. The applicant's
mother is very elderly and resides in Germany. She is unable to travel due to her
ill health.
4
9. The applicant wishes to be transferred to an institution in Germany so that he
can be close to his family. The applicant also wishes to avail of therapies for his
mental illness in his native language.
10. An appropriate secure psychiatric institution in Germany has been identified,
and the clinical director of that institution has confirmed his willingness to treat
the applicant. The clinical director has also confirmed that this institution would
provide detention facilities, treatment and reviews comparable to those which
the applicant would receive in Ireland.
11. The German Ambassador to Ireland has written to the Minister for Justice in
support of the transfer application, reiterating the benefit that the transfer would
have on the applicant, a German citizen; and confirming that the secure
psychiatric institution in Germany would be ready to accommodate the
applicant.
12. A formal application for a transfer was made to the (then) Minister for Justice
on 3 December 2018. An initial response to the application was received from
the Irish Prisons Service on 17 December 2018 as follows.
"I have received confirmation from the management of the
Central Mental Hospital that [the applicant] is not a prisoner,
and hence, the provisions of the Transfer of Sentenced
Persons legislation do not apply to him. As you point out in
your letter he is detained under Section 5(2) of the Criminal
Law (Insanity) Act 2006. He has to date never been in the
custody of the Irish Prison Service.
There is no legal provision for inter European interstate
transfer of patients detained under the Criminal Law
(Insanity) Act 2006."
13. The solicitors acting for the applicant made a detailed submission in response to
this letter the very next day, setting out their rationale for saying that the Transfer
of Sentenced Persons Act 1995 is applicable.
5
14. There then ensued what can only be described as an inordinate delay on the part
of the State agencies in progressing the application. Despite regular reminders,
by letter and telephone, a substantive response was not received by the
applicant's solicitors until 5 May 2020, that is, some eighteen months
subsequent to the making of the transfer application.
15. Following a further exchange of correspondence, the reasons for the Minister's
refusal to entertain the transfer application were set out as follows in a letter
dated 10 June 2020. This letter is again from the Irish Prison Services.
"I refer to your recent correspondence regarding your client
[Name redacted]'s unsuccessful application to transfer to
Germany under the provisions of the Transfer of Sentenced
Persons Act. In light of advises received, the following
summary outlines the reasons why the Minister does not
have the statutory power to issue a transfer warrant.
Background
Criminal Law Insanity Act 2006
Prior to the enactment of the 2006 legislation a person who
pleaded insanity successfully would be found `guilty but
insane' and remanded indefinitely to the Central Mental
Hospital, however under the provisions of the Criminal Law
(Insanity) Act, 2006 the accused person is not automatically
committed to a mental hospital on foot of successfully
pleading insanity. When the plea is successful, the verdict
has now changed to `Not guilty but insane'.
The consequences of this amendment is that a person cannot
be remanded in some form of custody, rather the legislation
in Section 5(2) of the 2006 Act empowers the judge to
commit the person to the custody of `a specified designated
centre' only where the judge is satisfied that the person is
suffering from a mental disorder and is in need of in-patient
care and treatment. If the judge is not satisfied that the
subject meets either of these criteria he cannot commit the
subject to a relevant mental hospital.
Transfer of Sentence Persons Act 1995 & 1997
The 1995 Act definition of a Sentence ends with the words
`on account of the commission of an offence'.
6
It is the view of Senior Counsel that within the definition of
the 1995 Act that an accused person found not `guilty but
insane, who is committed by the judge to the Central Mental
Hospital, is not subject to a `sentence' for 2 reasons. Firstly,
he or she has been found not guilty and therefore has not been
detained `on account of the commission of an offence'.
Secondly, the reasons and the only reasons for the committal
of the person is that he or she suffers from a mental disorder
and is in need of inpatient care or treatment.
Having giving (sic) due consideration `to all the information
and legal advice received, it was recommended that this
application is refused as Senior Counsel are of the view that
the Minister does not have the statutory power to issue a
transfer warrant because the Transfer of Sentenced Persons
legislation does not apply to a person committed to a
specified designated centre under Section 5(2) of the
Criminal Law (Insanity) Act, 2006 as amended by the
Criminal Law (Insanity) Act 2010."
PROCEDURAL HISTORY
16. The applicant instituted these judicial review proceedings by way of an ex parte
application for leave on 20 July 2020. The judicial review proceedings came on
for hearing before me on 3 December 2020. Counsel for all sides made
admirably crisp and concise submissions. The parties were given liberty to file
supplemental written submissions on the principles governing the interpretation
of domestic legislation which gives effect to international instruments, such as
the Convention on the Transfer of Sentenced Persons. The applicant's side, in
their supplemental submissions, very helpfully referred me to a relevant
Supreme Court authority, Sweeney v. Governor of Loughan House Open Centre
[2014] IESC 42; [2014] 2 I.R. 732. I will return to discuss this judgment at
7
CONVENTION ON THE TRANSFER OF SENTENCED PERSONS
17. The Irish State ratified the Convention on the Transfer of Sentenced Persons on
31 July 1995.
18. The recitals to the Convention provide that foreigners who are deprived of their
liberty as a result of their commission of a criminal offence should be given the
opportunity to serve their sentences within their own society, and that this aim
can best be achieved by having them transferred to their own countries.
19. The term "sentence" is defined as follows.
"`sentence' means any punishment or measure involving
deprivation of liberty ordered by a court for a limited or
unlimited period of time on account of a criminal offence"
20. Relevantly, the Convention distinguishes between (i) the commission of a
criminal offence, i.e. in the sense of the carrying out of the acts or omissions
making up the offence, and (ii) the concept of criminal responsibility. This arises
under Article 9 in the context of the transfer of persons, who for reasons of
mental condition, have been held not criminally responsible for the commission
of the offence.
21. The Irish State, by way of declaration, has indicated the procedure which it will
follow in the case of such persons.
"In accordance with the provisions of Article 9, paragraph 4,
Ireland may apply the Convention to persons detained in
hospitals or other institutions under orders made in the
course of the exercise by courts and tribunals of their
criminal jurisdiction."
22. There is no doubt, therefore, that a person who has been held not criminally
responsible for the commission of an offence, but is detained in an institution
under an order made by a criminal court, can apply for transfer into the Irish
8
State. It is also accepted by the Minister that such a person is eligible for transfer
out of the Irish State.
23. Thus, the parties in the present case are all agreed that, under the terms of the
Convention itself, the applicant is eligible for transfer notwithstanding that, as a
result of the special verdict, he has not been found criminally responsible.
Counsel for the Minister accepts that it is sufficient for the purposes of the
Convention that the applicant had "committed", i.e. carried out, the act alleged
against him, namely dangerous driving causing death. Counsel expressly stated
that it is sufficient that an accused person has carried out the actus reus of the
offence.
COUNCIL FRAMEWORK DECISION 2008/909/JHA
24. The written legal submissions filed on behalf of the applicant also make brief
reference to a framework decision adopted by the European Council in 2008.
The full title of the framework decision is as follows: Council Framework
Decision 2008/909/JHA of 27 November 2008 on the application of the principle
of mutual recognition to judgments in criminal matters imposing custodial
sentences or measures involving deprivation of liberty for the purpose of their
enforcement in the European Union. For ease of reference, this instrument will
be referred to hereinafter as "the Framework Decision on the Transfer of
Prisoners" or simply "the Framework Decision".
25. The Framework Decision replaces the corresponding provisions of the
Convention on the Transfer of Sentence Persons in respect of transfers between
Member States, with effect from 5 December 2011. (See Article 26 of the
9
Framework Decision). The Convention continues to govern the relationship
between a Member State and a third State.
26. As with the Convention which it replaces, one of the principal objectives of the
Framework Decision is to facilitate the social rehabilitation of convicted persons
by allowing them to serve their sentence in their home country.
27. The definition of "sentence" under the Framework Decision reads as follows.
"`sentence' shall mean any custodial sentence or any
measure involving deprivation of liberty imposed for a
limited or unlimited period of time on account of a criminal
offence on the basis of criminal proceedings"
28. The European Commission has published a handbook on the transfer of
sentenced persons and custodial sentences in the European Union to facilitate
and simplify the daily work of designated competent authorities.
(C:2019:403:TOC). The handbook expressly addresses the position of persons
who have been found not to have criminal accountability as follows.
2. 1.2.
Ratione materiae
With a view to facilitating the social rehabilitation of the
sentenced person, the Framework Decision covers any
custodial sentence or any measure involving deprivation of
liberty imposed for a limited or unlimited period of time on
account of a criminal offence on the basis of criminal
proceedings (Article 1(b)).
As is clear from the definition, any judgment, following
criminal proceedings on account of a criminal offence, and
resulting in a deprivation of liberty, may be forwarded under
the Framework Decision. This means that decisions
imposing internment following the establishment of the
offender's full or partial criminal unaccountability due to a
mental disability (see recital 20) are included in the
definition used in the instrument.
In addition, so-called combined sentences where the
judicial authority has deemed it necessary to impose a
combination of a custodial measure together with another
measure involving deprivation of liberty, such as psychiatric
treatment are covered by the Framework Decision."
10
29. As appears, it is not necessary that a person have been found to have criminal
accountability in order for them to be eligible for transfer under the Framework
Decision.
30. The Irish State has not yet transposed the Framework Decision. The Minister
did, however, publish the general scheme of the Criminal Justice (Mutual
Recognition of Custodial Sentences) Bill 2020 in July 2020.
31. The European Commission has publicly announced its decision to refer Ireland
to the European Court of Justice for failing to transpose the Framework Decision.
TRANSFER OF SENTENCED PERSONS ACT 1995
32. The Convention has been given effect to in domestic law by the Transfer of
Sentenced Persons Act 1995. It is evident from the Long Title of the Act that it
is intended to apply not only to convicted prisoners, but extends to persons
detained in hospitals or other institutions under orders made in the course of the
exercise by courts and tribunals of their criminal jurisdiction.
33. The term "sentence" is defined under section 1 as follows.
"`sentence' means 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;"
34. As appears, the wording differs slightly from that under the Convention itself in
that it includes the additional words "the commission of" in the final clause,
i.e. on account of the commission of an offence. As discussed under the next
heading, the Minister attaches much significance to this difference in wording.
35. It should also be noted that the definition under the domestic legislation omits
the word "criminal" from the phrase.
11
THE MINISTER'S POSITION
36. In her statement of opposition, the Minister maintains the position that the
applicant is not a "sentenced person". The Minister has also pleaded that the
Convention cannot assist in the interpretation of the terms "sentence" or
"sentenced person" because the Oireachtas, in enacting the Transfer of
Sentenced Persons Act 1995, has not adopted the meaning of "sentence"
provided for in the Convention.
37. In the written legal submissions filed on her behalf, the Minister contends that
the applicant cannot be regarded as having been deprived of his liberty "on
account of the commission of an offence" for two reasons. First, it is said that
the applicant has been found "not guilty" of the offence, albeit by reason of
insanity. Secondly, it is said that the applicant has not been deprived of his
liberty on account of the special verdict, but rather as a result of certain findings
made by the trial judge subsequently.
(i) No requirement for criminal responsibility
38. The argument underlying the first reason appears to be that the term "the
commission of an offence" entails a requirement for criminal responsibility.
Sensibly, this argument was not pursued at the hearing before me. Leading
counsel for the Minister very fairly accepted that this phrase refers merely to the
carrying out of the acts alleged against an accused (actus reus), in this instance,
dangerous driving causing death.
39. It is apparent from the wording of section 5(1) of the Criminal Law (Insanity)
Act 2006 that the jury must find that the accused person had "committed" the act
alleged against him or her before returning a special verdict to the effect that the
accused person ought not to be held responsible for the act alleged because they
12
were suffering at the time from a mental disorder. The concept of the
"commission" of an offence for the purposes of the Transfer of Sentenced
Persons Act 1995 should be read consistently with the concept of an accused
person having "committed" the act alleged in the criminal proceedings for the
purposes of the Criminal Law (Insanity) Act 2006. In each instance, it refers to
the carrying out of the actus reus.
(ii). Meaning of "on account of the commission of an offence"
40. In order to understand the argument underlying the second reason relied upon by
the Minister, it is necessary to explain the procedure governing a special verdict
under the Criminal Law (Insanity) Act 2006.
41. The circumstances in which a person, who has been found not guilty by reason
of insanity, may be committed to the Central Mental Hospital are prescribed
under section 5 of the 2006 Act.
42. Subsections 5(1) and (2) provide as follows.
5. (1)
Where an accused person is tried for an offence and, in the
case of the District Court or Special Criminal Court, the court
or, in any other case, the jury finds that the accused person
committed the act alleged against him or her and, having
heard evidence relating to the mental condition of the
accused given by a consultant psychiatrist, finds that--
(a)
the accused person was suffering at the time from a
mental disorder, and
(b)
the mental disorder was such that the accused person
ought not to be held responsible for the act alleged
by reason of the fact that he or she--
(i) did not know the nature and quality of the act,
or
(ii) did not know that what he or she was doing was
wrong, or
(iii) was unable to refrain from committing the act,
13
the court or the jury, as the case may be, shall return a special
verdict to the effect that the accused person is not guilty by
reason of insanity.
(2)
If the court, having considered any report submitted to it in
accordance with subsection (3) and such other evidence as
may be adduced before it, is satisfied that an accused person
found not guilty by reason of insanity pursuant to subsection
(1) is suffering from a mental disorder (within the meaning
of the Act of 2001) and is in need of in-patient care or
treatment in a designated centre, the court shall commit that
person to a specified designated centre until an order is made
under section 13 or 13A."
43. Subsection 5(3) provides for the preparation of a report by an approved medical
officer, i.e. a consultant psychiatrist within the meaning of the Mental Health
Act 2001, setting out his or her opinion on whether the person the subject of the
special verdict is suffering from a mental disorder and is in need of in-patient
care or treatment.
44. The effect of these provisions is that a special verdict of "not guilty by reason of
insanity" does not automatically result in detention. Rather, the jurisdiction to
detain the person the subject of the special verdict is contingent on the trial judge
being satisfied that that person is suffering from a mental disorder (as defined),
and is in need of in-patient care or treatment in a designated centre.
45. The essence of the Minister's submission is that the applicant is detained on
account of the Circuit Criminal Court's finding that the applicant is suffering
from a mental disorder and is in need of in-patient care or treatment, rather than
"on account of the commission of an offence". (It will be recalled that the
decision-letter of 10 June 2020 states that the only reason for the committal of a
person under the 2006 Act is that he or she suffers from a mental disorder and is
in need of inpatient care or treatment (see paragraph 15 above)).
14
46. The submission is neatly encapsulated at §6.4 of the written legal submissions
as follows.
"It may be correct [...] that the Applicant would not have
been the subject of a measure involving deprivation of liberty
ordered by the Circuit Criminal Court for an unlimited period
of time under Section 5(2) of the 2006 Act unless he had been
tried for a criminal offence. However, it is respectfully
submitted that it is incorrect to suggest either that he would
not have been committed but for the trial or that the detention
was as a result of the trial or verdict. It is plain that no
detention can take place under Section 5(2) of the Act
without a finding that the person, the Applicant in this case,
is suffering from a mental disorder and is in need of inpatient
care or treatment."
(Emphasis in original).
47. This submission is then elaborated upon as follows. Attention is drawn to the
fact that there is a separate statutory procedure (under section 8 of the Mental
Health Act 2001) by which a person may be involuntarily admitted to an
approved centre on the grounds that he or she is suffering from a mental disorder.
This separate procedure is not contingent on a special verdict in a criminal trial.
It is acknowledged that this is not the basis on which the applicant is actually
detained.
48. The new legislative scheme introduced by the Criminal Law (Insanity) Act 2006
is contrasted with the previous scheme. In particular, attention is drawn to the
fact that under the Trial of Lunatics Acts 1883, the consequence of a special
verdict of guilty but insane was that the court shall order the accused to be kept
in custody as a criminal lunatic.
49. The point is also made in the written legal submissions that, prior to the
enactment of the Criminal Law (Insanity) Act 2006, the decision to release a
person who had been detained following a special verdict of "guilty but insane"
had resided with the executive branch of government. By contrast, the power to
15
release a person committed under the 2006 Act is conferred upon a newly
established independent statutory body, namely the Mental Health (Criminal
Law) Review Board. It is queried, at §11 of the written legal submissions,
whether the Minister has any power, express or implied, to make any direction
which results in the release of the applicant from detention. Sensibly, this point
was not pursued at the hearing before me.
50. The Minister fully accepts that a person who had been detained under the
legislative scheme in force prior to the enactment of the Criminal Law (Insanity)
Act 2006 would have been eligible for transfer as a "sentenced person" under
domestic law. The logic of the Minister's submission is, however, that the
reforms introduced in 2006 had the unarticulated consequence that domestic law
was rendered non-compliant with the Convention. Put otherwise, it is suggested
that the introduction of legislative reforms, which were intended to ensure
compliance with Article 5 of the European Convention on Human Rights (as
interpreted in Winterwerp v. The Netherlands [1979] ECHR 6301/73), resulted
in non-compliance with the Convention on the Transfer of Sentenced Persons.
It is not suggested that this was a deliberate legislative choice. Nevertheless, the
court is invited to interpret the Transfer of Sentenced Persons Act 1995 in a
manner which is non-compliant.
DISCUSSION
51. The principal issue for determination in this judgment is whether the applicant's
detention in the Central Mental Hospital can be said to be "on account of the
commission of an offence", within the meaning of that phrase as used in the
16
Transfer of Sentenced Persons Act 1995. Before turning to address this issue, it
is necessary first to identify the relevant rules of statutory interpretation.
52. A very useful statement of the modern approach to statutory interpretation is to
be found in the judgment of the Supreme Court in C.M. v. Minister for Health
emphasised that, under the literal approach to interpretation, the intention of
parliament is to be determined by reference to the ordinary and natural meaning
of the words or phrases, having regard to both the proximate and general context
in which they occur. See paragraph 58 of the judgment as follows.
"Accordingly, a consideration of both the narrower and
broader context of any disputed provision, including the
subject matter of the legislation itself, is an integral part of
the literal approach, as is the legislative history, the subject
matter of the Act and, to use an almost obsolete phrase, the
`mischief' which was sought to be remedied by its
provisions. In identifying such matters, the same is not
intended, quite evidently, as a prescriptive ruling on this
approach."
53. McKechnie J. then described the purposive approach to interpretation as follows
(at paragraph 59).
"Where this method [i.e. the literal approach] does not yield
a sufficiently clear indication of parliament's intention, then
further assistance may be called upon by adopting one or
more of a range of options also available, including what is
sometimes referred to as a `purposive' approach, which
involves looking beyond the plain text of the statute and
considering the intended objective of the legislature and the
reason for the statute's enactment. As is made clear in
multiple court decisions going back very many years, where
the words are obscure or ambiguous, or their true meaning is
in doubt, such an approach is permissible [citations omitted].
Section 5 of the Interpretation Act 2005 now gives statutory
recognition to this course. [...]"
54. At an earlier point in the judgment (paragraph 56), McKechnie J. had noted the
absence of any clear, definitive and easily understood demarcation line between
17
the literal approach and the purposive approach. One possible explanation for
this is that the literal approach--in consequence of the requirement to have
regard to the overall context of legislative provisions--now shares much of the
territory previously occupied exclusively by the purposive approach.
55. I turn now to apply these principles to the present case. Irrespective of whether
one applies a literal or purposive approach, the objectives of the Convention on
the Transfer of Sentenced Persons undoubtedly form part of the "context" for
the interpretation of the Transfer of Sentenced Persons Act 1995. This is because
it is a well-established principle of statutory interpretation that regard should be
had to the meaning of the underlying international instrument when interpreting
domestic legislation which is intended to give effect to same. This principle is
summarised as follows by Murray J. in Crilly v. T. and J. Farrington Ltd
"For a very long time principles of common law concerning
the interpretation of statutes which give effect to
international treaties permit the courts to interpret such a
statute in the light of the meaning of relevant provisions of
the treaty concerned. No doubt this is in part because the
intention of the national legislature is clear to give effect to
provisions of the treaty in domestic law and the objective
consequence of that intent can be clarified or ascertained,
where necessary, by reference to the meaning of the relevant
provisions of the treaty, itself a legal instrument. There is
also the consideration that contracting parties to international
agreements should seek, as far as possible, to give uniform
effect to its provision in domestic law. Furthermore, with
this latter objective in mind, international treaties are
interpreted in accordance with the principles of international
law according to which the travaux prepatoires may be
consulted for the purposes of their interpretation (unless such
an approach is excluded, expressly, or by implication by the
terms of the treaty itself or if there are no travaux
preparatoires available)."
Sentenced Persons Act 1995 by the Supreme Court in Sweeney v. Governor of
18
Loughan House Open Centre [2014] IESC 42; [2014] 2 I.R. 732. Clarke J. (as
he then was) stated as follows (at page 753 of the reported judgment).
"[...] On the other hand, it is likewise well established that,
in seeking to interpret Irish statutes which have been put in
place so as to enable Ireland to comply with obligations
under international treaties, the courts will strive, if possible,
to ensure that Irish implementing legislation is interpreted in
a manner consistent with the international law obligations
undertaken by Ireland by entering into the treaty concerned
(see, for example, H.I. v. M.G. (Child abduction: Wrongful
removal) [2000] 1 I.R. 110).
It follows that, in interpreting the Act of 1995, the courts
should endeavour, if possible, to give it a meaning which
conforms with Ireland's obligations under the Convention.
However, that is the only effect of the Convention on the
legal rights and obligations which arise in this case. The
Convention is not part of Irish law. There are no relevant
European Union measures which affect the rights and
obligations which arise in this case."
57. The import of the case law is that it is legitimate for a court, when called upon
to interpret domestic legislation which gives effect to an international
instrument, to look beyond a narrow literal interpretation. However, none of the
authorities opened by the parties expressly address the extent to which a court
may, if necessary, depart from the literal wording of domestic legislation in order
to give effect to the objectives of an international instrument. The judgment in
Sweeney does, however, posit the interpretative obligation in broad terms, i.e. the
court should endeavour, if possible, to give the relevant domestic legislation a
meaning which conforms with the Irish State's international obligations.
58. Of course, there are limits to the interpretative obligation. A court cannot, for
example, favour an interpretation which would do violence to the language of
the domestic legislation. Happily, it is not necessary for the resolution of the
within proceedings to attempt to delineate the precise contours of the
interpretative obligation. This is because the relevant provisions of the Transfer
19
of Sentenced Persons Act 1995 can readily be interpreted in conformity with the
Convention without having to go much beyond the literal meaning (if at all).
59. (As discussed under the next heading below, the domestic legislation is also
subject to the specific interpretative obligation imposed upon a national court to
give effect to EU law).
60. It is apparent from the terms of the Transfer of Sentenced Persons Act 1995 that
it has been enacted to give effect to the Convention on the Transfer of Sentenced
Persons. Both parties are agreed that the correct interpretation of the Convention
is that a person in the position of the applicant, i.e. a person who for reasons of
mental condition has been held not criminally responsible for the commission of
an offence, is eligible for transfer.
61. For the reasons which follow, I am satisfied that the domestic legislation is
capable of being interpreted in a manner which is consistent with the objectives
of the Convention. Specifically, the definition of "sentence" under section 1 of
the Transfer of Sentenced Persons Act 1995 is broad enough to accommodate a
Convention-compliant interpretation. The phrase "on account of the
commission of an offence" includes circumstances where a person has been
deprived of their liberty in accordance with section 5 of the Criminal Law
(Insanity) Act 2006. To elaborate: the jurisdiction to commit a person who has
been found "not guilty by reason of insanity" to indefinite detention at the
Central Mental Hospital is contingent on a jury having returned a special verdict
in criminal proceedings. It is, of course, correct to say that a special verdict on
its own does not result in an automatic committal. Rather, there is an additional
requirement that the trial judge be satisfied that the accused person is suffering
from a mental disorder (as defined), and is in need of in-patient care or treatment
20
in a designated centre. Notwithstanding this additional requirement, the return
by the jury of a special verdict is nevertheless an essential prerequisite to the
exercise of the court's jurisdiction.
62. A special verdict in criminal proceedings is a sine qua non to the making of a
committal order under section 5 of the Criminal Law (Insanity) Act 2006. There
is thus a direct nexus between the finding that an accused person has carried out
the acts constituting the offence (albeit without criminal responsibility), and the
committal order made by the court.
63. It is also relevant that the definition of "sentence" under the Transfer of
Sentenced Persons Act 1995 speaks of "punishment" or other "measure"
involving deprivation of liberty, thus implying that the definition includes non-
punitive detention. Notwithstanding that the purpose of the applicant's detention
is the provision of in-patient care or treatment, the applicant could not have been
subject to an order made by a court exercising its criminal jurisdiction but for
the fact that he had been found by a jury to have committed the act of dangerous
driving causing death. It is apparent from the Long Title of the Act that it is
intended to apply not only to convicted prisoners, but extends to persons detained
in hospitals or other institutions under orders made in the course of the exercise
by courts and tribunals of their criminal jurisdiction.
64. The Minister, through counsel, has submitted that an interpretation of the term
"sentence" which encompasses a person detained pursuant to section 5(2) of the
Criminal Law (Insanity) Act 2006 would involve substituting the objectives of
the Convention for the actual wording used in the domestic legislation. Put
otherwise, it appears to be suggested that the interpretation would be contra
legem. With respect, I cannot accept that this submission is correct. There are,
21
of course, limits even to the purposive approach to interpretation. If and insofar
as a purposive approach involves moving beyond the literal meaning (in the strict
sense) of legislation, then the statutory language must be capable of bearing that
alternative meaning. The statutory language must be amenable to different
interpretations, i.e. the wording must be open-textured, or present some degree
of ambiguity.
65. The wording of the domestic legislation at issue in this case is sufficiently open-
textured to accommodate a Convention-compliant interpretation. The phrase
"on account of the commission of an offence" can legitimately be interpreted as
meaning that the commission of an offence (in the sense of having carried out
the act or omission alleged) is a prerequisite to, but not necessarily the only
prerequisite to, the deprivation of liberty.
66. The analogy drawn by the Minister with the separate procedure for involuntary
detention under the Mental Health Act 2001 (as amended) is not apt for the
reasons outlined by leading counsel for the applicant. The involuntary detention
is not contingent on criminal proceedings. Persons detained under the Mental
Health Act 2001 are not, in general, treated in the Central Mental Hospital unless
transferred there subsequently. Moreover, their continued detention is subject
to review by the Mental Health Tribunal (not by the Mental Health (Criminal
Law) Review Board). The latter legislation thus entails a separate and distinct
statutory regime.
67. By contrast, the applicant is detained under a statutory regime that only governs
individuals who have committed an act or omission which makes up a criminal
offence (albeit they have been held not to have criminal responsibility).
22
EU LAW CONSIDERATIONS: FRAMEWORK DECISION
68. For the reasons set out under the previous heading, I have concluded that the
domestic law definition of "sentence" (and the cognate definition of "sentenced
person") can legitimately be given an interpretation which is consistent with the
Convention. On this interpretation, the applicant represents a "sentenced
person" and is thus eligible for transfer as a matter of domestic law.
69. The same result is reached by reference to the Framework Decision on the
Transfer of Prisoners (Council Framework Decision 2008/909/JHA of
27 November 2008).
70. It may be helpful to the reader to pause briefly here, and to explain the nature of
a framework decision. It represented a form of intergovernmental decision-
making, which applied prior to the entry into force of the Lisbon Treaty, in the
fields of police and judicial cooperation in criminal matters. Framework
decisions were binding upon the Member States as to the result to be achieved,
but left the choice of form and methods to the national authorities. Framework
decisions did not entail direct effect.
71. Relevantly, a national court is obliged to interpret domestic law in conformity
with a framework decision. This interpretative obligation is qualified by the
contra legem rule. See Case C-105/03, Pupino (at paragraph 47) as follows.
"The obligation on the national court to refer to the content
of a framework decision when interpreting the relevant rules
of its national law ceases when the latter cannot receive an
application which would lead to a result compatible with that
envisaged by that framework decision. In other words, the
principle of conforming interpretation cannot serve as the
basis for an interpretation of national law contra legem. That
principle does, however, require that, where necessary, the
national court consider the whole of national law in order to
assess how far it can be applied in such a way as not to
produce a result contrary to that envisaged by the framework
decision."
23
72. The relevant provisions of the Framework Decision on the Transfer of Prisoners
have been set out earlier (at paragraphs 24 and onwards). Crucially, the
Framework Decision maintains the same distinction between (i) the commission
of a criminal offence, and (ii) the concept of criminal responsibility, as is found
under the Convention on the Transfer of Sentenced Persons. If anything, the
slightly modified wording of the definition of "sentence" under the Framework
Decision emphasises this. It follows that the applicant is eligible for transfer
under the Framework Decision as a "sentenced person". This is confirmed by
the European Commission's published handbook on the transfer of sentenced
persons and custodial sentences in the European Union (discussed earlier).
73. This court is obliged, insofar as possible, to interpret the relevant domestic
legislation, i.e. the Transfer of Sentenced Persons Act 1995, in conformity with
the Framework Decision. This interpretative obligation may well be stronger
than that which applies in the case of a non-EU international instrument.
74. For reasons similar to those discussed under the previous heading, I am satisfied
that the definition of "sentence" under section 1 of the Transfer of Sentenced
Persons Act 1995 is broad enough to accommodate an interpretation which is
compliant with EU law as set out in the Framework Decision.
CONCLUSION AND FORM OF ORDER
75. The uncontroverted evidence before the court is that it is in the applicant's best
interests to be transferred to his home country of Germany. This would ensure
that the applicant is close to his family (including his wife, young son and elderly
mother). It would also allow the applicant to receive treatment in his native
24
language. A secure psychiatric institution in Germany has agreed to accept the
applicant and to take responsibility for his treatment.
76. For the reasons set out herein, the Minister's decision to refuse the application
for a transfer on the basis that the applicant is not a "sentenced person" is
erroneous in law. The restrictive interpretation urged upon the court by the
Minister would render the domestic legislation inconsistent with the
requirements of both the Convention and the Framework Decision. Such an
interpretation would be contrary to the principle that the courts should
endeavour, if possible, to give the domestic legislation a meaning which
conforms with the Irish State's obligations under the Convention. (Sweeney v.
Governor of Loughan House Open Centre [2014] IESC 42; [2014] 2 I.R. 732).
More fundamentally, it would be contrary to the interpretative obligation
imposed upon a national court by EU law. (Case C-105/03, Pupino).
77. The correct interpretation of the Transfer of Sentenced Persons Act 1995 is that
it applies to a person, such as the applicant, who for reasons of mental condition
has been held not criminally responsible for the commission of an offence. The
applicant is, therefore, eligible for transfer under the domestic legislation.
78. It follows that the applicant is entitled to an order of certiorari setting aside the
Minister's decision to refuse to issue a warrant for his transfer out of the State.
The court will also make a formal declaration to the effect that the applicant
represents a "sentenced person" for the purposes of the Transfer of Sentenced
Persons Act 1995.
79. The matter will now be remitted to the Minister with a direction to reconsider
the transfer application and to reach a decision in accordance with the findings
in this judgment (Order 84, rule 27). The applicant has liberty to apply to this
25
court in the event that a fresh decision has not been made within twenty-eight
days of the date of this judgment. There has already been an inordinate delay in
the processing of the transfer application (which it will be recalled was first made
to the Minister on 3 December 2018). It is in the interests of justice that this
matter be brought to a conclusion, one way or another, within a short period of
time.
80. The reporting restrictions, which had first been imposed at the time of the
application for leave to apply for judicial review, continue in force. Specifically,
the publication or broadcast of any matter relating to the proceedings which
would, or would be likely to, identify the applicant is prohibited pursuant to
section 27 of the Civil Law (Miscellaneous Provisions) Act 2008.
81. These orders will be drawn up immediately, with the issue of costs to be
addressed in a separate order.
82. Insofar as costs are concerned, and given that this judgment has been delivered
electronically, the attention of the parties is drawn to the notice published on
24 March 2020 in respect of such judgments, as follows.
"The parties will be invited to communicate electronically
with the Court on issues arising (if any) out of the judgment
such as the precise form of order which requires to be made
or questions concerning costs. If there are such issues and
the parties do not agree in this regard concise written
submissions should be filed electronically with the Office of
the Court within 14 days of delivery subject to any other
direction given in the judgment. Unless the interests of
justice require an oral hearing to resolve such matters then
any issues thereby arising will be dealt with remotely and
any ruling which the Court is required to make will also be
published on the website and will include a synopsis of the
relevant submissions made, where appropriate."
83. The default position under Part 11 of the Legal Services Regulation Act 2015 is
that legal costs follow the event, i.e. the successful party is entitled to recover
26
their legal costs as against the unsuccessful party. Given that the application for
judicial review has been successful, my provisional view is that an order for
costs should be made in favour of the applicant as against the respondent. Such
costs to be adjudicated in default of agreement by the Office of the Legal Costs
Adjudicator. If the Minister wishes to contend for a different form of costs order
than that proposed, or to say that costs should be dealt with under the Legal
Aid Custody Issues Scheme, then this should be addressed by way of written
submissions to be filed electronically by 11 January 2021. The applicant's side
will have two weeks thereafter to reply.
Appearances
Feichín McDonagh, SC and Julia Fox for the applicant instructed by Duncan Grehan &
Partners
Robert Barron, SC and Michael D. Hourigan for the respondent instructed by the
Chief State Solicitor
Donal McGuinness for the notice party instructed by Byrne Wallace Solicitors
Result: Declaration that applicant is a "sentenced person" and eligible for transfer.
