Butcher v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 30 July 2012
• Neutral Citation: [2012] IEHC 347
• Docket Number: Record No. 1121 JR/2011
• Court: High Court
• Date: 30 July 2012

[2012] IEHC 347

THE HIGH COURT

Record No. 1121 JR/2011

Butcher v Minister For Justice

No Redaction Needed

Between

CLIVE BUTCHER

Applicant

And

THE MINISTER FOR JUSTICE AND EQUALITY

Respondent

TRANSFER OF SENTENCED PRISONERS ACT 1995

TRANSFER OF SENTENCED PRISONERS ACT 1997

CONVENTION ON TRANSFER OF SENTENCED PERSONS ART 9(1)(A)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

TRANSFER OF SENTENCED PRISONERS ACT 1995 S4

TRANSFER OF SENTENCED PRISONERS ACT 1995 S10(2)

TRANSFER OF SENTENCED PRISONERS ACT 1995 S10(A)

TRANSFER OF SENTENCED PERSONS (AMDT) ACT 1997 S2

TRANSFER OF SENTENCED PRISONERS ACT 1995 S10(B)

TRANSFER OF SENTENCED PERSONS (AMDT) ACT 1997 S3

NASH v MIN FOR JUSTICE 2004 3 IR 296

NASCIMENTO v MIN FOR JUSTICE 2011 1 IR 1

TRANSFER OF SENTENCED PRISONERS ACT 1995 S4(3)

MAHMOOD v SECRETARY OF STATE FOR HOME DEPARTMENT 2001 1 WLR 840

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701

KEEGAN v STARDUST TRIBUNAL 1986 IR 642

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

DICKSON v UK UNREP ECHR 4.12.2007 APP NO 44362/04

HIRST v UK (NO 2) 2006 42 EHRR 41

CONVENTION ON TRANSFER OF SENTENCED PERSONS ART 5

PLOSKI v POLAND 2003 1 PLR 120

X v UK 1982 ECHR 8

TROSIN v UKRAINE UNREP ECHR 23.2.2012 APP NO 39758/05

MOISEEYEV v RUSSIA 2011 53 EHRR 9

Judicial Review - Transfer of sentenced prisoners - Serve sentence in native country - Application for subsidiary protection refused - Due consideration - Transfer of Sentenced Prisoners Act 1995 - Transfer of Sentenced Prisoners Act 1997 - European Convention on Human Rights

Facts: The applicant, an UK national, was convicted of manslaughter and sentenced to six and a half years imprisonment in April 2010. In September 2010, he applied to be transferred to the UK under the Transfer of Sentenced Prisoners Acts of1995 and 1997 where he would serve the remainder of his sentence, citing his desire to be closer to his elderly mother. From correspondence between the respondent and the relevant authority in the UK, it emerged that the latter was prepared to accept the transfer and enforce the sentence as if he remained in the State but that he would be released automatically on licence at approximately the halfway point of his total sentence. Following this, the respondent refused to accede to the transfer application, stating that the Council of Europe Convention's scheme on prisoner transfers did not establish an automatic right to be transferred.

The applicant claimed that the respondent's decision had failed to give due consideration to the Council of Europe scheme on transfers as well as art 8 of the Convention on Human Rights. The respondent denied this, and inter alia claimed that the breach of the applicant's art 8 rights was justified as it supported the aim of preventing crime.

Held by O'Malley that whilst the power of the respondent in this matter was discretionary, the applicant's art 8 rights were affected and should have been duly considered and balanced by the respondent. Any refusal following this consideration would need to be justifiable according to Convention principles.

In the present case, the Statement of Opposition from the respondent expressly stated that the evidence presented by the applicant in support of his application was insufficient to justify a consideration of his art 8 rights. The respondent could have requested more information if they felt that was lacking, but failed to do so. By inference, the respondent had failed to consider art 8 sufficiently or at all.

In terms of the ultimate decision of refusal, it was not possible to determine whether this was the correct decision or not without further submissions from the two parties.

Final decision withheld until the conclusion of further hearing of the parties.

Ms. Justice Iseult O'Malley

Introduction

1 This case concerns the operation of the provisions of the Transfer of Sentenced Prisoners Act, 1995 and 1997. The purpose of these Acts is to implement the Council of Europe Convention on the Transfer of Sentenced Persons. 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 17^th 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 26^th April, 2010 he was sentenced to six and a half years imprisonment, to date from the 19^th 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 1^st November, 2013.

3 On the 21^st 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 Act, 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 visit etc 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 24^th 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 14^th January, 2011. That agency replied on the 8^th February, 2011. In relevant part the reply reads as follows:

"The Secretary of State for Justice is willing to agree to the transfer of Mr Butcher and I enclose a Declaration formally requesting his transfer under the Convention."

7 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.

8 However, under British Law, Mr Butcher 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 to transfer, any remission earned, and any remand time/pre-trial detention credited by the Sentencing State.

9 7. A statement of information for the applicant was also enclosed. This makes it clear that release in these circumstances is on licence and under supervision and does not, therefore, mean that the sentence has expired. It was also explained that while every effort would be made to locate the applicant close to his family this could not be guaranteed. There were also various documents to be signed by the applicant in relation to his consent and travel arrangements. These were signed by him on the 24^th February, 2011.

10 8. There is no evidence that anything further happened until the 28^th June. By letter of that date the respondent wrote as follows:

Dear Mr. Butcher

11 I am directed by the Minister for Justice and Equality to refer to your request for transfer to UK under the Council of Europe Convention on the Transfer of Sentenced Persons.

12 I am to inform you that the UK authorities provided information regarding the continued enforcement of your sentence in that jurisdiction. The Minister, having carefully considered the contents of your application, the serious nature of your offence and the reduction in time you would serve in the UK, has decided to refuse your application for transfer.

13 9. The letter goes on to note that the Convention does not confer an automatic right to be transferred nor does it confer an obligation on any state to comply with a transfer request.

14 10. On the 31^st August, 2011 the applicant's solicitor wrote to the respondent in relation to the refusal. It was argued on his behalf that the applicant fulfilled the criteria for transfer and yet had been refused. The letter goes on

"Frankly, we find this decision quite baffling given the apparent over-crowding situation in Irish prisons, our client's wish to serve his time in the U.K. and the willingness of the U.K. to accept him. You are no doubt aware that our client has no relatives in this jurisdiction and his elderly mother resides in the U.K.

Whereas in your letter you have outlined all the matters considered by the Minister and have indicated the result of that consideration, you have not communicated a reason for the ultimate decision taken by the Minister not to facilitate the transfer. We believe our client is entitled to be informed of the reason for the decision and we ask that you furnish us with same within the next ten days so that we can advise whether there are further avenues that can be pursued on behalf of our client."

15 11. In...