Balmer v Minister for Justice and Equality

JurisdictionIreland
CourtSupreme Court
JudgeDenham C.J.,Dunne J.,Charleton J.
Judgment Date20 July 2015
Neutral Citation[2015] IESCDET 34
Date20 July 2015

[2015] IESCDET 34

An Chúirt Uachtarach

The Supreme Court

DETERMINATION

Denham C.J.

Dunne J.

Charleton J.

Between:
MICHAEL ANTHONY BALMER
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
APPLICATION REFERRED TO IN ARTICLE 34.5.3° OF THE CONSTITUTION
RESULT: The Court makes an order allowing an appeal to this Court under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal delivered on the 21st day of May 2015.
REASONS:
1

This determination concerns an application brought by the applicant, Michael Anthony Balmer, in which the applicant seeks a determination under Article 34.5.3° of the Constitution to allow an appeal to this Court from the decision of the Court of Appeal delivered on the 21st day of May 2015: judgment of Peart J, Mahon J agreeing, [2015] IECA 102, Hogan J dissenting in a separate judgment; [2015] IECA 89.

2

The applicant was convicted of murder at Exeter Crown Court on 26 March 1984. He received a mandatory life sentence which carried a tariff of 12 years. For unexplained reasons that was later increased to 15 years. Having served about 27 years in prison, up to March 2011, he was released on licence by the Home Secretary subject to conditions, including being under the supervision of an officer, residing at a particular hostel and not leaving the United Kingdom. It appears that shortly after this release into the community, and apparently without obtaining permission, the applicant came to Ireland. On 19 March 2012, the Secretary of State signed a revocation of his licence, was recalling the applicant to prison. The stated reasons are simply ticked against a box marked ‘allegedly committed a further offence’ and another box marked ‘poor behaviour’. Apparently, there is no further information as to what crime the applicant may have committed. The revocation notice in question, however, indicates that once he returns to prison he then can make representations to the Parole Board against the decision to recall him and as the information upon which that reportedly was based.

3

A European arrest warrant was transmitted to this jurisdiction from the United Kingdom and duly endorsed. During the course of preparation further information was sought as to what the life sentence regime in the requesting jurisdiction was understood to mean. Ireland has also a mandatory life sentence for murder. As to what that means as between Ireland and the United Kingdom was central to the prior litigation. An affidavit from a barrister practising in England stated that the tariff was there for the purposes of ‘satisfying the requirements of retribution and deterrence’ while the balance of the life sentence constituted ‘a preventative period during which release and liberty on licence was dependent on an assessment of risk’. Since the applicant has served the tariff, apparently described as the punitive element of the sentence, issues arose as to the validity of the enforcement in this jurisdiction of a warrant which had, on the arguments put forward by the applicant, a preventative purpose, claimed to be contrary to Article 40.3 and Article 40.4 of the Constitution.

4

Following a hearing before Edwards J in the High Court, by an order and judgement dated 18 September 2014, the trial judge rejected the argument made on behalf of the applicant, but by a separate order dated 18th of November 2014, certified that the decision involves a point of law the exceptional importance and that it was desirable and public interest that on appeal should be taken. The certified point was thus expressed:

Where the requested person has been sentenced in the United Kingdom to a life sentence for murder, and has served a portion of the sentence consisting of his/her individualised tariff, and which are said by the issuing state to have constituted the entirety of the punitive element of the said sentence, would the surrender of that person to serve the balance of his/her sentence constituted a contravention of any provision of the Constitution of Ireland, and in particular of Article 40.4 thereof, such that the contemplated surrender would be prohibited by section 37(1)(b) of the European Arrest Warrant Act 2003?

5

Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution and those which may be established by law; provides for the full and original jurisdiction of the High Court; and under Article 34.2 establishes the Court of Appeal and under Article 34.5.3° sets out its appellate jurisdiction. This reads:

4 1° The Court of Appeal shall—

i save as otherwise provided by this Article, and

ii with such exceptions and subject to such regulations as may be prescribed by law,

have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.

6

Article 34.4 of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from decisions of the Court of Appeal. This is set out in Article 34.5.3° and 4° of the Constitution. The former relates to appeals where there has been a determination by the Court of Appeal and the latter where a litigant seeks to come directly from the High Court to the Supreme Court. The article relevant to this appeal, that where the Court of Appeal has already given judgment on a matter, is now quoted:

3° The Supreme Court shall, subject to such

regulations as may be prescribed by law, have...

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