Caffrey and Others v Minister for Justice and Others
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 20 July 2012 |
| Neutral Citation | [2012] IEHC 313 |
| Court | High Court |
| Date | 20 July 2012 |
[2012] IEHC 313
THE HIGH COURT
AND
AND
AND
AND
EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 5
CONSTITUTION ART 40
CAFFREY v GOVERNOR OF PORTLAOISE PRISON UNREP CHARLETON 20.5.2010 2010/7/1520 2010 IEHC 213
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)
CRIMINAL JUSTICE (TEMPORARY RELEASE OF PRISONERS) ACT 2003
EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 3
EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 5(4)
CONSTITUTION ART 34
CONSTITUTION ART 38
CONSTITUTION ART 13.6
TRANSFER OF SENTENCED PERSONS ACT 1995 S7(4)
EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 9(3)
MURRAY v IRELAND 1991 ILRM 465
O'NEILL & QUINN v GOVERNOR OF CASTLEREA PRISON & ORS 2004 1 IR 298
TRANSFER OF SENTENCED PERSONS ACT 1995 S7(2)
CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 9(3)
CONSTITUTION ART 15.2.1
CONSTITUTION ART 28.2
CRIMINAL JUSTICE ACT 1951 S23(1)
CRIMINAL JUSTICE ACT 1951 S23(3)
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S17
CONSTITUTION ART 34.1
LYNHAM v BUTLER (NO 2) 1933 IR 74
CRIMINAL JUSTICE ACT 1960 S2(1)
CRIMINAL JUSTICE ACT 1960 S2(2)
LYNCH & WHELAN v MIN FOR JUSTICE & ORS 2008 2 IR 148
LYNCH & WHELAN v MIN FOR JUSTICE & ORS UNREP SUPREME 14.5.2010 2010 IESC 34
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1(1)
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)
WEEKS v UK 1987 10 EHRR 293
THYNNE, WILSON & GUNNELL v UNITED KINGDOM 1991 13 EHRR 666
WYNNE v UK 1994 19 EHRR 3
STAFFORD v UK 2002 35 EHRR 1121
KAFKARIS v CYPRUS 2009 49 EHRR 35
BRENNAN v GOVERNOR OF PORTLAOISE PRISON 2008 3 IR 364
Q (W) v MENTAL HEALTH CMSN 2007 3 IR 755
TRANSFER OF SENTENCED PERSONS ACT 1995 S6(5)
Sentencing law - Criminal law - Procedure - Transfer of sentence - Parole Board - Independent - ECHR- Transfer of Sentenced Prisoners Act 1995
Facts: The applicants were sentenced to life imprisonment following a trial in the United Kingdom and had both been transferred to Ireland to serve out the balance of the sentence, pursuant to the Transfer of Sentenced Prisoners Act 1995, as amended. The first applicant had previously challenged the validity of his detention, which had been upheld. They now argued that the determination of the length of a sentence was a matter for the courts and not the executive. They sought orders inter alia compelling the respondents to establish a review of the sentence of the applicant distinct and independent from the Government and a declaration that the Parole Board was contrary to Ireland's obligations pursuant to the ECHR.
Held by Kearns P. that the reliefs sought would be refused. Even if the proceedings were entitled to succeed, the reliefs sought would still be refused on the grounds of wavier and acquiescence. The validity of the sentence regime had been upheld on a number of occasions. The powers of commutation and remission did not encroach on the administration of justice. The applicants failed to demonstrate any breach of the ECHR.
JUDGMENT of Kearns P. delivered the 20th day of July, 2012.
These cases come before the court by way of applications for judicial review. The applicants seek inter alia:
1. An order of mandamus by way of an application for judicial review, compelling the respondents to establish and put in place a review of the applicant's sentence and detention by a competent, impartial and independent Tribunal, separate and distinct from the executive branch of Government.
2. A Declaration that the Parole Board as currently constituted, and the mechanism for reviewing sentences in Ireland, is contrary to Ireland's obligations under the European Convention on Human Rights (hereafter referred to as 'the ECHR').
3. A Declaration that the applicant is entitled to an impartial and independent review of his sentence, by a competent and impartial Tribunal that is independent of the executive branch of Government or, in the absence of same, entitled to an order directing the respondents to terminate his detention.
4. A Declaration that the applicant's rights under Article 5 of the ECHR have been breached.
5. An Order prohibiting the Parole Board as currently constituted from taking any further steps in reviewing the applicant's detention.
6. Damages for breach of the applicant's rights under the Constitution and under the ECHR.
The first-named respondent is the member of the Government with responsibility for the areas of Justice, Equality and Law Reform and has overall responsibility for the administration of prisons and prisoner sentences in Ireland. The second-named respondent is Ireland. The third-named respondent is the legal advisor to the Government and the Chief Legal Officer of the State. The notice party is a non-statutory body that is an adjunct of the Department of Justice and comes within the remit of the first-named respondent. The notice party replaced the Sentence Review Group in April 2001, the latter having been established under an administrative scheme for the purpose of considering the cases of long-term prisoners in 1989. The notice party's principal function is to advise the first respondent on the administration of the sentences of persons whose cases the first respondent has referred to it. The final decision regarding the recommendations of the notice party rests with the first respondent.
The applicant in the first case (hereafter referred to as "the first applicant') was sentenced to life imprisonment on the 15 th December, 1999 following a trial in the United Kingdom. He received a sentence of 8 years in respect of one count of causing grievous bodily harm with intent, same to be served concurrently with the sentence of life imprisonment imposed on count number 2 on the Indictment, being murder. The sentence upon which the applicant is now detained is one of life imprisonment in respect of which a tariff of 12 years imprisonment was recommended by the trial judge and by Chief Justice Bingham under the UK tariff process. These recommendations were accepted by the U.K. Home Secretary. In May 2005, he was transferred from the United Kingdom to Ireland to serve out the balance of that sentence pursuant to the Transfer of Sentenced Persons Act, 1995, as amended. The applicant is currently in custody at Portlaoise Prison.
The applicant in the second case (hereafter referred to as 'the second applicant') was sentenced on the 7 th November, 1996 to life imprisonment in the United Kingdom following a trial at Luton Crown Court. The applicant received a sentence of life imprisonment in respect of murder. The trial judge and Lord Chief Justice recommended a tariff of 14 years, which recommendations were accepted by the U.K. Home Secretary. The sentence was backdated to the 18 th March, 1996, the date upon which the applicant first went into custody. In May 2003, he was transferred from the United Kingdom to Ireland to serve out the balance of the sentence under the Transfer of Sentenced Persons Act, 1995, as amended. The applicant is currently in custody at the Training Unit in Mountjoy Prison having been transferred there on the 23 rd November, 2010.
Documentation from the U.K. Ministry of Justice confirms that the minimum tariffs of 12 years and 14 years respectively were set for the purposes of punishment and deterrence. The same documentation confirms that the first and second applicants were initially remanded in custody on the 18 th March, 1996 and on the 24 th March, 1998 respectively. The tariffs accordingly expired on the 18 th March, 2010 in the case of the first applicant (being 12 years from the date of the initial remand) and the 23 rd March, 2010 in the case of the second applicant (being 14 years from the date of the initial remand). No application was made to adapt the sentence of either applicant into Irish law at the respective times of their transfer from prison in the U.K. to Ireland, notwithstanding the fact that the minimum tariff system which applies to certain sentences in the UK is a concept unknown to Irish law.
The first applicant brought proceedings under Article 40 of the Constitution of Ireland challenging the legality of his detention entitled Jonathon Caffrey v. Governor of Portlaoise Prison [2010] IEHC 213. On the 20 th May, Charleton J. held that he was in lawful custody. The first applicant appealed to the Supreme Court, which appeal was heard on the 24 th March, 2011 and the 15 th March, 2011. The Court upheld the decision of the High Court by a majority judgment of 3 to 2 delivered on the 1 st February, 2012, with Denham C.J., Hardiman and Macken JJ. concurring and Fennelly and Murray JJ. dissenting.
The second applicant did not challenge the legality of his detention as he was awaiting the outcome of the Caffrey litigation.
The first applicant's case was last considered by the third party on the 28 th September, 2011, at which stage the applicant had served over 15 years of his sentence. I was informed that the first respondent has received recommendations from the third party in this regard but they are not before the Court.
The second applicant states that his case was to be heard by the third party during May 2011 but that this review did not take place and indeed has yet to take place. The second applicant has been in custody for in excess of 13 years.
The applicants submit that...
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