Caffrey v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: Denham C.J.,Mr. Justice Fennelly
• Judgment Date: 01 February 2012
• Neutral Citation: [2012] IESC 4
• Court: Supreme Court
• Docket Number: [S.C. No. 267 of
• Date: 01 February 2012

Caffrey v Governor of Portlaoise Prison

Between/

Jonathon Caffrey

Applicant/Appellant

And

The Governor of Portlaoise Prison

Respondent/Respondent

[2012] IESC 4

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Macken J.

[Appeal No: 267/2010]

THE SUPREME COURT

PRISONS

Transfer of prisoners

Sentencing -Mandatory life sentence for murder - Tariff imposed in United Kingdom - Legal nature of life sentence with tariff - Punitive nature of sentence - Preventative detention - Management of life sentence by Irish authorities - Whether continued detention lawful under Irish law after expiration of tariff - Whether tariff relevant to legal nature of life sentence - Whether Irish authorities could make reference to tariff period - Whether nature of life sentence changed when prisoner transferred from United Kingdom to Ireland - Whether matter appropriate for application under Article 40.4 - Lynch and Whelan v Minister for Justice, Equality and Law Reform [2010] IESC 34, (Unrep, SC, 14/5/2010) considered - Transfer of Sentenced Persons Act 1995 (No 16), ss. 1, 2, 5, 6 and 7 - Transfer of Sentenced Persons (Amendment) Act 1997 (No 41), s 1 - Constitution of Ireland 1937, Article 40.4.2 - Convention on the Transfer of Sentenced Persons 1983, articles 2, 3, 5, 6, 7, 9, 10 and 11 - Applicant's appeal dismissed (267/2010 - SC - 1/2/2012) [2012] IESC 4

Caffrey v Governor of Portlaoise Prison

Facts: The appellant had received a life sentence of twelve years in the UK, back dated. The Minister for Justice had consented to his transfer to Ireland. The appellant claimed that the nature of the sentence that he was given comprised a punitive element of twelve years followed by a preventative detention for the rest of his life. It was argued that the preventative detention was a concept unknown to Irish sentencing law and that as he had served the punitive element he ought to have been released. The appellant was held in custody pursuant to a warrant made under s. 7 Transfer of Sentenced Persons Act 1995-1997. The respondent submitted that a habeas corpus inquiry was not appropriate. The High Court held that the administering State was prohibited from commuting a sentence of imprisonment into another kind of sentence.

Held by Denham C.J. (Hardiman, Fennelly, Macken JJ. concurring); (Fennelly, Murray JJ dissenting), that the appeal would be dismissed and the order of the High Court affirmed. The Parole Board did not manage the sentence according to English practice but managed his sentence in accordance with Irish law. This was the correct approach in law. The judgement and order of the High Court would be affirmed. Fennelly J: The warrant disclosed that he was held for the purpose of serving a sentence of life imprisonment imposed by an court in the United Kingdom. The "legal nature" of the sentence depends on the law of the sentencing state. The Court has caused inquiry to be made into the "legal nature" of the sentence. The result of that inquiry was that the appellant's continued detention was exclusively for a purpose which was not compatible with Irish law. The appellant was not lawfully detained.

Reporter: E.F.

CONSTITUTION ART 40.4

CONSTITUTION ART 40.4.2

TRANSFER OF SENTENCED PERSONS ACT 1995 S7

TRANSFER OF SENTENCED PERSONS ACT 1995 S6(3)(A)

CRIMINAL JUSTICE ACT 1964 S4

CRIMINAL JUSTICE ACT 1990 S2

R v EVANS & CAFFREY 2001 AER (D) 289 (MAR) 2001 EWCA CRIM 730

TRANSFER OF SENTENCED PERSONS (AMDT) ACT 1997

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(10)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(4)

BRENNAN & ORS v GOVERNOR OF PORTLAOISE PRISON 2008 3 IR 364

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(5)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(7)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(6)(A)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(6)(B)

R v SECRETARY OF STATE FOR THE HOME DEPT, EX PARTE DOODY 1994 1 AC 531 1993 3 WLR 154 1993 3 AER 92

WYNNE v UNITED KINGDOM 1995 19 EHRR 333

R (ANDERSON) v SECRETARY OF STATE FOR THE HOME DEPT 2003 1 AC 837 2002 3 WLR 1800 2002 4 AER 1089

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CRIMINAL JUSTICE ACT 2003 SCHED 22 (UK)

CRIME (SENTENCES) ACT 1997 S28(6)(B)

R v PAROLE BOARD, EX PARTE LODOMEZ 1994 COD 525 26 BMLR 162

TRANSFER OF SENTENCED PERSONS ACT 1995 S1(1)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 9(3)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 2(2)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 10(2)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(6)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 11

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 10

LYNCH & WHELAN v MIN FOR JUSTICE & ORS UNREP 14.5.2010 2010 IESC 34

DPP v BAMBRICK 1996 1 IR 265 1996/10/2980

CONSTITUTION ART 40

MCDONAGH, STATE v FRAWLEY 1978 IR 131

MCSORLEY & MULHOLLAND v GOVERNOR OF MOUNTJOY PRISON 1997 2 IR 258 1997 2 ILRM 315 1997/10/3339

SHEEHAN v DISTRICT JUDGE REILLY & GOVERNOR OF LIMERICK PRISON 1993 2 IR 81 1993 ILRM 427 1992/13/4201

1 Judgment delivered on the 1st day of February 2012,by Denham C.J.

2 JUDGMENTS DELIVERED BY DENHAM CJ [HARDIMAN J & MACKEN J CONCUR.] & FENNELLY J [MURRAY J CONCUR.]

3 1. This is an appeal by Jonathon Caffrey, the applicant/appellant, referred to as "the appellant", from the judgment and order of the High Court (Charleton J.) delivered on the 20 ^th May, 2010, which refused the appellant's application under Article 40.4 of the Constitution of Ireland. The Governor of Portlaoise Prison is the respondent, and is referred to as "the respondent".

4 2. The respondent has served a notice to vary the judgment and order of the High Court delivered on the 20 ^th May, 2010.

5 3. The appellant brought his application in the High Court to seek an enquiry into the lawfulness of his detention, pursuant to Article 40.4 of the Constitution of Ireland, 1937. The application was grounded on the affidavit of Barry Powderly, Solicitor, deposed on the 25 ^th March, 2010, to which there were a number of exhibits.

6 4. On the 26 ^th March, 2010, the High Court (Hedigan J.) ordered, in accordance with Article 40.4.2 of the Constitution, that the respondent produce the appellant before the Court at 11 o'clock on the 31 ^st March, 2010, and certify in writing the grounds of his detention.

7 5. A replying affidavit was filed by Brendan Eiffe, an Assistant Principal Officer of the Prisons Policy Division, Department of Justice, Equality and Law Reform, on the 31 ^st March, 2010. To this affidavit there were a number of exhibits also.

Certificate

8 6. Pursuant to the order of the High Court made on the 26 ^th March, 2010, the Assistant Governor of Portlaoise Prison certified in writing the grounds for the detention of the appellant. He stated:-

"I, Christopher McCormack, Assistant Governor of Portlaoise Prison, hereby certify as follows: I hold the [appellant] in custody in Portlaoise Prison pursuant to warrant pursuant to section 7 of the Transfer of Sentence Persons Act, 1995, dated the 31 ^st August, 2004. I refer to the said warrant when produced and to a photostat copy thereof upon which is pinned together and marked "A" I have endorsed my name before the signing hereof."

9 The document was signed by Christopher McCormack and dated the 31 ^st March, 2010.

Warrant

10 7. The warrant, to which there was reference in the certified grounds for the detention of the appellant, and upon which the appellant is held in custody, recites as follows:-

"THE HIGH COURT

Record Number

WARRANT PURSUANT TO SECTION 7 OF THE TRANSFER OF SENTENCED PERSONS ACT, 1995

APPLICANT:	THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
SENTENCED PERSON:	JONATHON CAFFREY
SENTENCING STATE:	UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
CRIME:	MURDER
SENTENCE IMPOSED BY SENTENCING STATE:	LIFE IMPRISONMENT
DATE OF COMMENCEMENT OF SENTENCE:	15 th December 1999

11 Whereas upon the hearing of an application at the High Court held at the Four Courts, Dublin 7 on the 12 ^th day of July 2004 for the issue of a Warrant authorising the bringing of the said sentenced person into the State from a place outside the State, and the taking of the said person and custody to and the persons detention in the State, the Court was satisfied that:-

12 (a) The said sentenced person is regarded as a national of the State within the meaning of Section 6(3)(a) of the Transfer of Sentenced Persons Acts, 1995 to 1997;

13 (b) The sentence imposed on the said sentenced person by the said sentencing State is final;

14 (c) At the time of the request for a transfer into the State, the said sentenced person had at least six months of the sentence imposed by the said sentencing state left to serve;

15 (d) The said sentenced person consents in writing to a transfer into the State;

16 (e) The acts or omissions constituting the said offence would, if done or made in or on the territory of the State constitute an offence under the law of the State, to wit murder contrary to common law and Section 4 of the Criminal Justice Act, 1964 and Section 2 of the Criminal Justice Act, 1990 which said offence in this jurisdiction carries a mandatory penalty of life imprisonment upon conviction.

17 (f) The Minister for Justice, Equality and Law Reform consents to the transfer concerned.

18 An Order was made authorising the bringing of the said sentenced person into the State and the taking of the said person in custody to, and his detention in custody at Mountjoy Prison and to serve his sentence there.

19 THIS IS TO AUTHORISE YOU to whom this Warrant is addressed to execute the said Order against the said person as follows:-

20 To bring the said sentenced person in custody into the State and to lodge the said person in Mountjoy...