Ciara Fogarty v Provost and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hogan,Ms. Justice Iseult O'Malley
Date26 August 2014

[2014] IEHC 416

THE HIGH COURT

[No. 1062 SS/2014]
O'Farrell v Governor of Portlaoise Prison
IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION
BETWEEN/
FINTAN PAUL O'FARRELL
APPLICANT

AND

GOVERNOR OF PORTLAOISE PRISON
RESPONDENT

CONSTITUTION ART 40.4.2

TRANSFER OF SENTENCED PERSONS ACT 1995 S7

CONSTITUTION ART 40

SWEENEY v GOVERNOR OF LOUGHLAN HOUSE OPEN CENTRE & ORS UNREP SUPREME 3.7.2014 2014 IESC 42

TRANSFER OF SENTENCED PERSONS ACT 1995 S1(1)

CONSTITUTION ART 29.6

PRISON RULES 2007 SI 252/2007 r59(1)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 9(1)(A)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(4)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 9(1)(B)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(5)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 9(1)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 10(1)

PRISON RULES 2007 SI252/2007 r59

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(7)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(6)

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

TRANSFER OF SENTENCED PERSONS (AMENDMENT) ACT 1997 S7

TRANSFER OF SENTENCED PERSONS ACT 1995 S9(1)(B)

TRANSFER OF SENTENCED PERSONS ACT 1995 S9(2)

CARROLL v GOVERNOR OF MOUNTJOY PRISON 2005 3 IR 292 2005/9/1904 2005 IEHC 2

EJERENWA v GOVERNOR OF CLOVERHILL PRISON & MIN FOR JUSTICE UNREP SUPREME 28.10.2011 2011/20/5060 2011 IESC 41

JOYCE v GOVERNOR OF THE DOCHAS CENTRE 2012 2 IR 666 2013 2 ILRM 366 2012/19/5564 2012 IEHC 326

MCDONAGH, STATE v FRAWLEY 1978 IR 131

MILLER v GOVERNOR OF MIDLANDS PRISON UNREP BAKER 26.3.2014 2014 IEHC 176

EAST DONEGAL CO-OP v AG 1970 IR 317

Crime & Sentencing – Terrorism and conspiracy – Sentence – S. 7 of the Transfer of Sentenced Persons Acts 1995-1997 – Order of release under Article 40.4.2 of the Constitution – Warrant of detention – Contrasting nature of sentencing systems.

Facts: The applicant pleaded guilty and was sentenced for 30 years of imprisonment. On application, the Court of Appeal of England and Wales (Criminal Division) curtailed the years of imprisonment to 28 years. Thereafter, an application for a transfer to Ireland was made and a warrant pursuant to s. 7 of the Transfer of Sentenced Persons Acts 1995-1997 was issued. The applicant sought an inquiry into the legality of the detention. The applicant contended that the issued warrant lacked justification for detention and therefore, it would be defective.

Mr. Justice Gerard Hogan held that the art 40.4.2 application would be adjourned. The Court observed that the Court would wait for an application, if any, of an order varying the existing s. 7 order to be made. In the absence of any such application, the Court proposed to order the release of the applicant. The Court observed that the infirmities in the s. 7 warrant in the present case would not fall into the category of harmless error.

1

1. This application for an inquiry into the legality of the applicant's detention once again raises vexed questions concerning the contrasting nature of the sentencing systems in England and Wales on the one hand and in Ireland on the other, the capacity of this Court to correct documentary error and the general jurisdiction of the Court in Article 40.4.2 proceedings. The present application arises in the following circumstances:

The background facts
2

2. In May, 2002 the applicant pleaded guilty to a variety of serious offences involving terrorism, including conspiracy to cause explosives. From the details supplied by a Detective Inspector Miles of the Anti-Terrorism Branch of the (London) Metropolitan Police it appears that the applicant was a member of an illegal organisation styling itself as the "Irish Republican Army". He - along with others - had sought arms and financial support from the Iraqi Government in 2001. For that purpose they travelled to Slovakia where they believed that they had been dealing with agents from the Iraqi Intelligence Service. They had a variety of meetings with these agents and supplied them with details regarding the munitions and ordnance they required. The agents were in fact members of the British security services who had managed to infiltrate the illegal organisation in question.

3

3. The applicant was arrested (along with two others) by Slovak police on 5 th July, 2001. They were subsequently extradited from Slovakia to the United Kingdom on 30 th August, 2001. They were arrested and taken into custody. The applicant subsequently pleaded guilty at Woolwich Crown Court on 2 nd May, 2002, to four serious terrorism offences. He received a sentence of 30 years' imprisonment from the presiding judge, Astill J., which sentence was back-dated to 5 th July, 2001, the date on which he went into custody in Slovakia.

4

4. The applicant appealed the severity of that sentence to the Court of Appeal of England and Wales (Criminal Division). On 15 th July, 2005, that Court set aside the original terms of 30 years' imprisonment and substituted a sentence of 28 years' imprisonment. There is no doubt but that the sentence as so varied constituted a final order of the courts of England and Wales.

5

5. On 28 th July, 2006, this Court issued a warrant pursuant to s. 7 of the Transfer of Sentenced Persons Acts 1995-1997 ("the 1995 Act") providing for the transfer of the applicant to this State and detaining him in Portlaoise Prison. Since the terms of that warrant are of some importance to the issues raised in this litigation, it may be convenient if its terms are set out in full:

"THE HIGH COURT

Warrant pursuant to s. 7 of the Transfer Sentence Persons Act 1995-1997

"THE HIGH COURT

Applicant:

The Minister for Justice, Equality and Law Reform

Sentenced Person:

Fintan Paul O'Farrell

Sentencing State:

United Kingdom, Great Britain and Northern Ireland

Crime:

(i) conspiracy to cause explosions

(ii) Inviting another to provide money or property for the purpose of terrorism.

(iii) Entering into an arrangement to make money and property available for terrorism.

Sentences in the Sentencing State:

(a) 28 years imprisonment for the conspiracy to cause explosions at (i) above.

(b) 12 years imprisonment concurrent to the said 28 years imprisonment, for the offences at (ii) and (iii) above.

Date of commencement

of Sentences:

7 th May, 2002."

6

6. The terms of this warrant convey in rather unambiguous terms the impression that the applicant's sentence was one of 28 years' imprisonment commencing on 7 th May, 2002. The situation is, however, somewhat more complicated than this. For this purpose it is necessary now to explain the background to the original application for a transfer to Ireland on the part of the applicant.

7

7. Following the completion of the appeal process and the finalisation of his sentence, the applicant then applied on 22 nd August, 2005, for a transfer under the 1995 Act. The Minister wrote to Mr. O'Farrell on 29 th March, 2006, prior to the transfer in order to draw his attention to the fact the standard rate of remission in Ireland was 25% rather than the one third figure which applied in the UK. On this basis, therefore, it was estimated that his final release date was 20 th January, 2022, rather than the 29 th April, 2020. The latter date was the Minister's understanding of the likely release date were the applicant to remain in prison in the UK. It was on this basis, therefore, that the applicant gave his consent to the transfer on 27 th June, 2006.

8

8. Other formalities were also duly complied with. The relevant British and Irish officials accordingly satisfied themselves that the applicant was an Irish national and that there was the necessary correspondence under the law of England and Wales and Irish law respectively concerning the offences of which the applicant had been convicted. The applicant was then transferred from the United Kingdom to Ireland in late September, 2006.

The plenary proceedings
9

9. At this point it is necessary to say something about the nature of the proceedings. The applicant originally moved this Court for an order of the release under Article 40.4.2 of the Constitution. One of the claims advanced related to the constitutionality of s. 7 of the 1995 Act and it was contended that this provision was unconstitutional insofar as it allowed for the making of an order detaining the prisoner on an ex parte basis. Although the language of the Constitution itself expressly envisages that the constitutionality of a law may be determined in Article 40 proceedings, it is has often been found more convenient that such issues would be determined in plenary proceedings following an exchange of pleadings.

10

10. The parties mutually agreed that this course would be adopted in the present case. The applicant then commenced separate plenary proceedings (2014, No. 15582P) in which the Governor, the Minister for Justice and Equality, Ireland and the Attorney General were named as defendants. While there is some degree of overlap between the two sets of proceedings, it has been agreed that I should first give judgment on all issues relating to the warrant of detention made by this Court on 28 th July, 2006, under s. 7 of the 1995 Act. The question of the constitutionality of this procedure and, indeed, s. 7 itself accordingly stands adjourned pending the resolution of this first question.

The sentencing system in England and Wales and the decision in Sweeney
11

11. The real complication which arises in the present case is that the sentencing system which operates in England and Wales is now appreciably different from that which obtains under Irish law. It is, however, common case between the parties that, having regard to the relevant...

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6 cases
  • O'Farrell v Governor of Portlaoise Prison
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  • Grant v Governor of Cloverhill Prison
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    ...that order, thereby enabling rectification of the record during the course of the inquiry ( O'Farrell v. Governor of Portlaoise Prison [2014] IEHC 416 (Hogan J.), Moore v. Governor of Wheatfield Prison [2015] IEHC 147 (Kearns P.), O'Neill v. Governor of Wheatfield Prison [2015] IEHC 168 (Ke......
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