Craig v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Denham C.J.,Dunne J.,Charleton J.
• Judgment Date: 20 July 2015
• Neutral Citation: [2015] IESCDET 35
• Date: 20 July 2015
• Court: Supreme Court

[2015] IESCDET 35

An Chúirt Uachtarach

The Supreme Court

DETERMINATION

Denham C.J.

Dunne J.

Charleton J.

Between:

ANTHONY CRAIG

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

APPLICATION REFERRED TO IN ARTICLE 34.5.3° OF THE CONSTITUTION

RESULT: The Court makes an order allowing an appeal to this Court under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal delivered on the 21st day of May 2015.

REASONS:

1 This determination concerns an application brought by the applicant, Anthony Craig, in which he seeks a determination under Article 34.5.3° of the Constitution to allow an appeal to this Court from the determination of the Court of Appeal delivered on the 21st day of May 2015: judgment of Peart J, Mahon J agreeing [2015] IECA 102, Hogan J dissenting in a separate judgment; [2015] IECA 89.

2 The issues raised on this application are similar to those argued on the application brought by Michael Anthony Blamer. In this case, that of Anthony Craig, however, the applicant's factual circumstances are somewhat different. This applicant was convicted of murder at Preston Crown Court on the 12th of February 1974 and received the mandatory sentence of life imprisonment which follows upon a murder conviction in the United Kingdom. Ireland has a similar law but the actual make up of the sentence may or may not be different. The Home Secretary directed that he serve a minimum term of 15 years. This, according to information submitted in a European arrest warrant application in this jurisdiction at a later stage, constituted the punitive element of the sentence. Thereafter, apparently, the offender enters upon the risk element of the sentence and may only be detained if the offender continues to be a risk to the public. Upon the serving of the tariff, an independent Parole Board conduct a review in order to side if the offender's detention should be continued beyond that point. If detention is not deemed to be necessary then the offender is released on licence. If there is no release the must be a further review on a periodic basis. By July 2002, this applicant had served some 28 years of imprisonment and had earlier been transferred to an open prison. In that month he escaped and, according to evidence on affidavit, came to Ireland in 2005. In the intervening 10 years he has married in this jurisdiction. His return to the United Kingdom was sought on the basis of the unexpired portion of his sentence of imprisonment for life and was also requested in order to prosecute him for escape at common law, an offence which of itself carries a discretionary maximum penalty of life imprisonment.

3 A European arrest warrant was transmitted to this jurisdiction from the United Kingdom and duly endorsed. During the course of preparation, further information was sought as to what the life sentence regime in the requesting jurisdiction was understood to mean. An affidavit from a barrister practising in that jurisdiction stated that the tariff was there for the purposes of ‘satisfying the requirements of retribution and deterrence’ while the balance of the life sentence constituted ‘a preventative period during which release and liberty on licence was dependent on an assessment of risk’. This information was noted by the Court of Appeal to be similar in this application of Anthony Craig to the application in respect of Michael Anthony Balmer. Since the applicant has served the tariff, as in the other case, apparently described as the punitive element of the sentence, issues arose as to the validity of the enforcement in this jurisdiction of a warrant which had, on the arguments put forward on behalf of the applicant, a preventative purpose, claimed to be contrary to Article 40.3 and Article 40.4 of the Constitution.

4 Following a hearing before Edwards J in the High Court, by an order and judgement dated 18 September 2014, the trial judge rejected the argument made on behalf of the applicant, but by a separate order dated 18th of November 2014, certified that the decision involved a point of law the exceptional importance and that it was desirable and public interest that on appeal should be taken. The certified point was thus expressed:

Where the requested person has been sentenced in the United Kingdom to a life sentence for murder, and has served a portion of the sentence consisting of his/her individualised tariff, and which are said by the issuing state to have constituted the entirety of the punitive element of the said sentence, would the surrender of that person to serve the balance of his/her sentence constituted a contravention of any provision of the Constitution of Ireland, and in particular of Article 40.4 thereof, such that the contemplated surrender would be prohibited by section 37(1)(b) of the European Arrest Warrant Act 2003?

5 Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution and those which may be established by law; provides for the full and original jurisdiction of the High Court; and under Article 34.2 establishes the Court of Appeal and under Article 34.5.3° sets out its appellate jurisdiction. This reads:

4 1° The Court of Appeal shall—

i save as otherwise provided by this Article, and

ii with such exceptions and subject to such regulations as may be prescribed by law,

have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.

6 Article 34.4 of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from decisions of the Court of Appeal. This is...