Caffrey v The Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 20 May 2010
• Neutral Citation: [2010] IEHC 213
• Court: High Court
• Date: 20 May 2010

[2010] IEHC 213

THE HIGH COURT

[521SS/2010]

Caffrey v Governor of Portlaoise Prison

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND, 1937

BETWEEN

JONATHON CAFFREY

APPLICANT

AND

THE GOVERNOR OF PORTLAOISE PRISON

RESPONDENT

R v EVANS & CAFFREY 2001 EWCA CRIM 730

MURDER (ABOLITION OF DEATH PENALTY) ACT 1965 S1(1) (UK)

MURDER (ABOLITION OF DEATH PENALTY) ACT 1965 S2 (UK)

CONSTITUTION ART 40.4.2

CONSTITUTION ART 40.4.1

BRENNAN v GOVERNOR OF PORTLAOISE PRISON 2008 3 IR 364

W.Q v MENTAL HEALTH COMMISSION 2007 3 IR 755

BYRNE, STATE v FRAWLEY 1978 IR 326

TRANSFER OF SENTENCED PERSONS ACT 1995 S2

TRANSFER OF SENTENCED PERSONS ACT 1995 S5

TRANSFER OF SENTENCED PERSONS ACT 1995 S7

TRANSFER OF SENTENCED PERSONS (AMDT) ACT 1997 S1

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(5)

LYNCH v MIN FOR JUSTICE UNREP SUPREME 14.5.2010 2010 IESC 34

WEEKS v UK 1987 10 EHRR 293

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

STAFFORD v UK 2002 35 EHRR 32

TRANSFER OF SENTENCED PERSONS ACT 1995 S1(1)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(5)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(6)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(10)

EX PARTE READE v SECRETARY OF STATE FOR THE HOME DEPARTMENT 1988 3 AER 993

REPARTITION OF PRISONERS ACT 1984 (UK)

KHAN, IN RE 2006 EWHC 2826 QB

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 2

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 3

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 6

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 7

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 9

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 9(1)(B)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 9(3)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART ART 10

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART ART 10.2

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 11

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 11(1)(B)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(5)

CRIMINAL JUSTICE ACT 1960 S2

CRIMINAL JUSTICE (TEMPORARY RELEASE OF PRISONERS) ACT 2003 S2

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(4)

CRILLY v FARRINGTON LTD 2001 3 IR 251

PRISONS

Detention

Transfer of sentenced person - Life imprisonment - Expiry of tariff period of sentence - Legal nature and duration of sentence - Whether applicant's consent to transfer rendered detention lawful - Whether motivation of trial judge in setting tariff changed nature of sentence - Whether sentence aggravated as to its legal nature and duration - Nature of life sentence in United Kingdom - Whether nature of life sentence changed when prisoner transferred from United Kingdom to Ireland - Whether detention lawful - Brennan v Governor of Portlaoise Prison [2008] 3 IR 364, WQ v Mental Health Commission [2007] 3 IR 755 and The State (Byrne) v Frawley [1978] IR 326 considered; Re Khan [2006] EWHC 2826 followed - Transfer of Sentenced Persons Act 1995 (No 16), ss 1, 2, 5, 6 & 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 - Detention found lawful (2010/521SS - Charleton J - 20/5/2010) [2010] IEHC 213

Caffrey v Governor of Portlaoise Prison

STATUTE

Interpretation

International convention - Statute giving effect to international convention - Use of explanatory report as aid to interpreting convention - Reg v Home Sec, Ex p Read (HL(E)) [1989] AC 1014 followed and Crilly v T & J Farrington Ltd [2001] 3 IR 251 applied - Convention on the Transfer of Sentenced Persons 1983 articles 2, 3, 5, 6, 7, 9, 10 and 11 - Detention found lawful (2010/521SS - Charleton J - 20/5/2010) [2010] IEHC 213

Caffrey v Governor of Portlaoise Prison

Facts The applicant was convicted of murder in England and a sentence of life imprisonment was imposed in 1999. However, the trial judge in England made a recommendation that the minimum term to be served should be twelve years. In 2005 the applicant was transferred from prison in England to Ireland in order to serve the balance of his sentence nearer his family and the recommended minimum period having now expired, the applicant claimed he was in unlawful custody. The applicant submitted that the nature of the sentence imposed in England comprised a punitive element of twelve years imprisonment followed by preventative detention for the rest of his life. The applicant further submitted that having served the punitive element of his sentence he was now being held in preventative detention which was a concept unknown to Irish law and was therefore unlawful. The applicant had been reviewed by the Parole Board, who decided that should he continue to engage with the education and therapeutic services offered to him they would consider transferring him to a training unit and following that in 2011, a release plan would be put in place.

Held by Charleton J. in refusing the application: That a prisoner cannot by reason of delay, consent or apparent acquiescence make lawful what is otherwise an unlawful detention. Furthermore, the court does not have any discretion akin to that exercised in judicial review proceedings to refuse to make an order in habeas corpus proceedings. The administration of the applicant's sentence in Ireland clearly focused on the issue of rehabilitation and that was what motivated the Parole Board in any recommendation they may make. Furthermore, having regard to the provisions of the Transfer of Sentenced Persons Act, 1995 and the Convention on the Transfer of Sentenced Persons it was clear that the nature of the sentence imposed on the applicant was one of imprisonment for life and the motivation of the trial judge in setting a particular tariff or minimum term to be served in respect of personal deterrence and punishment did not change the nature of the sentence. The nature of the sentence of life imprisonment in England was, as to its nature, the same as a sentence of life imprisonment in Ireland and there were no grounds for declaring the applicant's detention unlawful. It could be expected that the applicant would continue his rehabilitation and await, in due course, the decision of the Minister for Justice, Equality and Law Reform as to his release at a time and on terms advised by the Parole Board.

Reporter: L.O'S.

1 1. In this habeas corpus enquiry a transferred prisoner, the applicant Jonathon Caffrey, claims to be in unlawful custody. He is serving life imprisonment, a sentence that was imposed in England in December 1999 for the murder in that jurisdiction of Andrew Cook in November 1994. As in Ireland, a conviction for murder in England carries a mandatory sentence of imprisonment for life. In England, however, the trial judge, unlike in Ireland, makes a recommendation as to the minimum term to be served. In this instance, it was twelve years. Jonathan Caffrey's sentence was backdated to begin in March 1998, when he was first taken into custody. In consequence, that minimum term expired in March of this year. He claims that the nature of the sentence that he was given in England comprised a punitive element of twelve years imprisonment followed by preventive detention for the rest of his life. In May 2005, he was transferred from prison in England to Ireland in order to serve the balance of his sentence nearer to his family. Since preventivedetention is a concept unknown in Irish sentencing law, it is argued that since the applicant has served the punitive element of his sentence he should be immediately released.

The Offence

2 2. On the night of 6 ^th November 1994, Jonathon Caffrey, Brett Evans and Justin Reiss went to the home of Andrew Cook, at 33 Downside Walk in Northolt, England. A row broke out over some allegation of sexual infidelity with a girl who was not present. The applicant, Jonathon Caffrey, beat Andrew Cook so badly that he was rendered senseless and unconscious in his living room. Brett Evans then got a knife from the kitchen and, sitting astride the helpless victim, stabbed him a number of times, so that there was blood spurting from his wounds, and he left the knife stuck into his neck. Most of the evidence came from Justin Reiss, who, it was alleged, was not involved in this attack. He described Brett Evans as encouraging Jonathon Caffrey while he beat Andrew Cook senseless. Brett Evans then went into the kitchen, where Justin Reiss claimed to be, and took a large knife out of the sideboard saying that they had to finish Andrew Cook off. This would have been out of the hearing of Jonathon Caffrey, according to Justin Reiss. The body was not discovered for some days. There was an issue at trial as to whether the date of death estimated by two forensic pathologists could have given both men an alibi. Jonathon Caffrey had immediately departed for Ireland. When he was extradited back to England, he could not be interviewed but, instead, gave the police a prepared statement claiming that he had acted in self-defence when the deceased had attacked him. To that evidence was added testimony from Mark McGirr, a friend of Jonathon Caffrey. He told him about the murder; that he had lost his temper and given the deceased "a good hiding" andhad "beaten him to a pulp and his mate had stabbed the man". He told him that his mate had gone to the kitchen and come back with a knife and had said "we've got to finish him off", whereupon his mate stabbed the man ten times and blood had spurted out. To Mark McGirr, Jonathon Caffrey demonstrated a stabbing movement and smirked as he did so. On the occasion of a later admission to the same witness, to much the same effect, there was no smirking and Jonathon Caffrey added that he was "gutted" over what had happened. The Court of Appeal...