Butcher v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 30 July 2012
• Date: 30 July 2012
• Docket Number: [2011 No. 1121 JR]
• Court: High Court

[2012] IEHC 347,

High Court

[2011 No. 1121 JR]

Butcher v. Minister for Justice

Clive Butcher

Applicant

and

The Minister for Justice and Equality

Respondent

Cases mentioned in this report:-

Dickson v. United Kingdom (App. No. 44362/04) (2007) 46 E.H.R.R. 927, [2007] 3 F.C.R. 877, [2008] 1 F.L.R. 1315, [2008] Fam. Law 211, [2008] Fam. Law 99, [2007] N.L.J.R. 1766, (2007) 24 B.H.R.C. 19.

Hirst v. United Kingdom (No. 2) (App. No. 74025/01) (2005) 42 E.H.R.R. 849; (2005) 19 B.H.R.C. 546; [2006] 1 P.L.R. 220.

Meadows v. Minister for Justice [2010] IESC 3, [2010] 2 I.R. 701; [2011] 2 I.L.R.M. 157.

Moiseyev v. Russia (App. No. 62936/00) (2008) 53 E.H.R.R. 306.

Nascimento v. Minister for Justice [2007] IEHC 358, [2011] 1 I.R. 1.

Nash v. Minister for Justice [2004] IEHC 356, [2004] 3 I.R. 296; [2005] 1 I.L.R.M. 503.

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] 1 I.L.R.M 202.

Ploski v. Poland (App. No. 26761/95) [2003] 1 P.L.R. 120.

R. (Mahmood) v. Home Secretary [2001] 1 W.L.R. 840, [2001] 2 F.C.R. 63, [2001] 1 F.L.R. 756, [2001] Fam. Law 257, [2001] Imm. A.R. 229.

The State (Keegan) v. Stardust Compensation Tribunal[1986] I.R. 642; [1987] I.L.R.M. 202.

Trosin v. Ukraine (App. No. 39758/05) (Unreported, European Court of Human Rights, 23rd February, 2012).

X v. United Kingdom (App. No. 9054/80) (1982) 30 D.R. 113.

Criminal law - Prisoners - Transfer of prisoners - Ministerial decision - Judicial review - Standard of review - Right to family life - Relevant considerations - Whether decision concerning fundamental human rights - Whether interference with right to family life permissible - Whether due consideration given to right to family life - Whether public interest in upholding full sentence imposed by court - Transfer of Sentenced Persons Act 1995 (No. 16), s. 4 - European Convention on Human Rights and Fundamental Freedoms 1950, article 8.

Judicial review

The facts have been summarised in the headnote and are more fully set out in the judgment of O'Malley J., infra.

On the 21st November, 2011, the applicant was granted leave by the High Court (Peart J.) to seek certiorari of the decision of the respondent to refuse his request for a transfer to the United Kingdom.

The matter was heard by the High Court (O'Malley J.) on the 20th and 24th July, 2012.

Section 4 of the Transfer of Sentenced Persons Act 1995 provides,inter alia, as follows:-

"(1) A person on whom a sentence has been imposed in the State who wishes to be transferred out of the State to another Convention state, in order to serve the sentence or the balance of the sentence so imposed, may apply in writing to the Minister for such a transfer …

(3) … the Minister may grant an application under subsection (1) of this section, if the Minister is satisfied that the following requirements have been fulfilled …"

The applicant was a British national who had been convicted in the State of manslaughter and sentenced to six and a half years' imprisonment. He sought transfer to the United Kingdom pursuant to the provisions of the Act of 1995. He indicated that the purpose of his request was to enable visits from his elderly mother and his family. The United Kingdom authorities were willing to agree to the transfer but indicated that the applicant would be released on licence at the half way point of the balance of sentence remaining at the date of the transfer. They also indicated that while every effort would be made to locate the applicant close to his family, that could not be guaranteed.

The respondent refused the application for transfer, stating that the decision was taken following careful consideration the contents of the application, the serious nature of the offence and the reduction in the length of sentence that would be served in the United Kingdom. The applicant sought judicial review of the respondent's decision on the basis that it did not give sufficient respect to his right to a family life pursuant to article 8 of the European Convention on Human Rights 1950.

Held by the High Court (O'Malley J.), in finding that the respondent had not taken account, or sufficient account, of a relevant consideration, 1, that the power to transfer was a discretionary one and the fact that an applicant met the statutory criteria did notper se entitle him or her to be transferred.

Nash v. Minister for Justice [2004] IEHC 356, [2004] 3 I.R. 296 and Nascimento v. Minister for Justice[2007] IEHC 358, [2011] 1 I.R. 1 approved.

2. That a request by a prisoner for transfer to his home country on the grounds of access to his family was capable of engaging rights under article 8 of the European Convention on Human Rights 1950. A decision to refuse such a request was an interference with the right to a family life requiring justification according to Convention criteria. Where decisions encroached on rights, it was the duty of the decision maker to take account of and to give due consideration to those rights. Where an applicant claimed that the decision was unreasonable, the court had to examine it to ensure that the decision maker had complied with that duty. In considering the reasonableness of a decision, the court had to look at the proportionality of its impact on the right in question.

Dickson v. United Kingdom (App. No. 44362/04) (2007) 46 E.H.R.R. 927 and Meadows v. Minister for Justice[2010] IESC 3, [2010] 2 I.R. 701 considered.

3. That the fact that the sole ground put forward by the applicant for the transfer was to be closer to his mother was enough to put the respondent on notice that family rights were being invoked.

4. That, as the respondent specifically pleaded that the evidence in the application for transfer was tenuous and not sufficient to engage a consideration by the respondent of article 8, that lead to an inference that consideration was not given to this aspect and, in turn, lead to the conclusion that the decision was not made within the spirit and intent of the Act of 1995.

Cur. adv. vult.

O'Malley J. 30th July, 2012

Introduction

[1] This case concerns the operation of the provisions of the Transfer of Sentenced Prisoners Acts 1995 and 1997. The purpose of these Acts is to implement the Council of Europe Convention on the Transfer of Sentenced Persons 1983. In brief, the objective is to provide a mechanism whereby persons who are nationals of another member state and who are convicted of offences in this State can be transferred to serve the sentence in their own country.

Facts of the case

[2] The applicant is a British national in his late forties. On the 17th December, 2008, within this State, he killed one Rebecca Hoban. He was charged with murder but after trial was acquitted on that count and found guilty of manslaughter. On the 26th April, 2010, he was sentenced to six and a half years' imprisonment, to date from the 19th December, 2008. There was no appeal against that sentence by either the applicant or the Director of Public Prosecutions. Applying current rates of remission he will be entitled to release on or around the 1st November, 2013.

[3] On the 21st September, 2010, the applicant sought to be transferred to the United Kingdom to serve the remainder of his sentence pursuant to the provisions of the Transfer of Sentenced Prisoners Acts 1995 and 1997.

[4] The application form is a one page document containing the following headings: name, date of birth, sentence, prison, nationality, desired location of transfer (city/state), reasons for interest in transfer and name and address of next of kin in the desired location. The prisoner must confirm that the sentence is final and that there is no appeal outstanding. The form must be signed and dated. Finally, there is a note stating that documentation in support of the application "i.e. copy birth certificate, passport details etc."may be submitted with the form.

[5] Under the heading "Reasons for interest in transfer" the applicant wrote "to enable visitetc. from elderley (sic) mother and family. Note: as requested in May, 2010". It should perhaps be noted that these two sentences take up three of the four lines provided under this heading. His mother's address is given in Colchester in Essex. The desired location of transfer is Norwich. The application form has a date stamp on it indicating that it was received by the prisons policy division of the respondent's department on the 24th September, 2010.

[6] From the correspondence exhibited by the respondent it would seem that his officials forwarded information relating to the transfer request to the National Offender Management Service of the Ministry of Justice in the United Kingdom by letter dated the 14th January, 2011. That agency replied on the 8th February, 2011. In relevant part, the reply reads as follows:-

"The Secretary of State for Justice is willing to agree to the transfer of [the applicant] and I enclose a declaration formally requesting his transfer under the Convention.

I confirm that the United Kingdom will apply the 'continued enforcement' procedure in accordance with article 9(1)(a) of the Convention. We will continue to enforce a sentence of 6 years 6 months imprisonment.

However, under British law, [the applicant] will be automatically released at the half way point of the balance of the sentence remaining at the date of the transfer. The balance of the sentence is calculated by deducting from the total number of days in the sentence, the number of days actually served prior...