O'Farrell v Governor of Portlaoise Prison

 
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[2016] IESC 37

THE SUPREME COURT

Denham C.J.

O'Donnell J. & Clarke J.

MacMenamin J.

Laffoy J.

[Appeal No: 429/2014 and 440/2014]

[Appeal No. 427/2014 and No. 441/2014

[Appeal No: 430/2014 and 439/2014]

Record Nos: 2014/1062 SS, 2014/1063 SS, 2014/1064 SS

Denham C.J.

O'Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

Laffoy J.

O'Malley J.

In the matter of an enquiry under Article 40.4.2 of the Constitution of Ireland, 1937

Between/
Fintan Paul O'Farrell
Applicant/Respondent
and
Governor of Portlaoise Prison
Respondent/Appellant
Between/
Michael Christopher McDonald
Applicant/Respondent
and
Governor of Portlaoise Prison
Respondent/Appellant
Between/
Declan John Rafferty
Applicant/Respondent
and
Governor of Portlaoise Prison
Respondent/Appellant

Administrative & constitutional law – Prisoners – Detention – Legality of – Defective warrants – Transfer of Sentenced Persons Act 1995

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 12th day of July, 2016.
Introduction:
1

Against the background of the ever increasing internationalisation of crime, which even then involved criminals from a multiplicity of different states, the Council of Europe commenced a project in 1978 which eventually led to the Convention on the Transfer of Sentenced Persons (‘The Convention’ or ‘The Strasbourg Convention’) being opened for signature as and from the 21st March, 1983, and coming into force in July, 1985. Ireland deposited its Instrument of Accession on the 20th August, 1986. In all there are now more than sixty countries which have become parties to this Convention. Nothing turns on the supplemental agreement done at Brussels in 1987, or on the provisions of the Additional Protocol done at Strasbourg in December, 1997.

2

In furtherance of this international commitment the Oireachtas, pursuant to Article 15.2.1° and Article 29.6 of the Constitution, enacted the Transfer of Sentenced Persons Act 1995, and carried through some amendments in 1997 (‘The 1995 Act’, unless otherwise stated). Whilst based on and fundamentally reflecting its provisions, the legislation did not, as such, incorporate the Convention into domestic law. Accordingly it is the 1995 Act which confers whatever jurisdiction there is, on both the relevant Minister of Government and the Superior Courts.

3

By availing of both these statutory provisions, Mr. O'Farrell and the other applicants in the joined proceedings above entitled were transferred to this jurisdiction on the 29th September, 2006, to serve the balance of sentences previously imposed upon them in England. Challenging the legality of their continuing detention, they instituted habeas corpus proceedings in June, 2014, which were later followed by plenary proceedings in which the constitutionality of s. 7 of the 1995 Act was impugned. Those proceedings were held over until all the issues in the Article 40 application were dealt with.

4

Having made the necessary inquiry, Hogan J., then of the High Court, for the reasons set out in two judgments delivered on the 26th August, 2014, and the 11th September, 2014, respectively, held in their favour and by orders made on the 11th September, 2014, in each case directed their immediate release. Having successfully persuaded this Court to retain seisin of the cases by reason of their exceptional public importance, the Governor of Portlaoise Prison, as sole respondent, has now appealed against the High Court decision, as have the successful applicants by a notice of cross appeal on one particular point only. This is my judgment on the issues so raised which, purely for convenience, I have drafted through the lens of the O'Farrell case. As there is no discernible difference between any of the three applications, it applies with equal force to both Mr. McDonald and Mr. Rafferty also.

Background:
5

From the evidence tendered at his trial, the applicant, who was a member of an illegal organisation styling itself as the ‘Irish Republican Army’, travelled, with others, to Slovakia in July, 2001 in the belief that he and those with him would meet with agents of the Iraqi Intelligence Service from whom they had previously sought arms and financial support. Over the course of several meetings, they outlined details of the munitions and ordinance which they required. The agents in fact were members of the British Security Services who had managed to infiltrate the illegal organisation in question. They were arrested on the 5th July, 2001, and, following their extradition to the United Kingdom, were charged with a number of grave offences relating to terrorism, including conspiracy to cause explosions. The accused persons pleaded guilty to such charges at Woolwich Crown Court in May, 2002, and were sentenced to thirty years imprisonment in respect of the most serious charge, and twelve years on the other charges, to run concurrently with the longer sentence. The presiding judge directed that the commencement date of all sentences should be the date of their initial incarceration in Slovakia, namely the 5th July, 2001. On appeal, the lengthier sentence was reduced to a term of twenty eight years by the Court of Appeal of England and Wales (Criminal Division) on the 15th July, 2005. It is not suggested that the substituted term should commence from any date other than that as directed by the trial judge.

6

In August, 2005, the applicant, through the appropriate authorities in the United Kingdom, engaged with the Minister for Justice, Equality and Law Reform (‘the Minister’) seeking to avail of the provisions of the 1995 Act. The Department responded by letter dated the 24th March, 2006, in which its officials set out what they considered would be his expected release date if transferred to this jurisdiction. Allowing for time served or deemed to have been served in England, and having due regard to the normal remission of 25% available under Rule 59 of the Prison Rules 2007 (S.I. No. 252/2007) (‘the Prison Rules’), that specified date was easily capable of calculation. The only variable related to the precise date of transfer, which had not yet been ascertained, and its effect on the period of remission. It was also pointed out in such correspondence, erroneously it must be said, that as the regime in England provided for one third remission, the expected release date for the prisoner if he stayed would be the 29th April, 2020. Noting those differences in the respective regimes, it was thought highly likely, in fact a certainty, that the actual incarceration period to be served in this jurisdiction would be longer than in the United Kingdom.

7

On the same date Mr. O'Farrell was also written to: based on a hypothetical transfer date of the 1st July, 2006, his estimated release date was given as the 20th January, 2022. Acknowledging that he had read this correspondence and that he had been informed, inter alia, ‘…that I will continue to serve my sentence of 28 years imprisonment, as reduced from 30 years imprisonment … and other concurrent sentences, as advised in [the Department's] letter of 24th March, 2006’, he furnished his consent to the requested transfer on these terms, and did so by signature verification on the 27th June, 2006. Being otherwise satisfied that the qualifying criteria had been met and that the sentencing state had so agreed, the Minister thereafter made an application to the High Court seeking the necessary warrant pursuant to s. 7 of the 1995 Act, so that the transfer and subsequent detention could be lawfully validated.

8

The High Court, on application being made, issued the warrant on the 27th July, 2006; because of its central role in this case, its relevant terms, which are as follows, should be noted:-

‘WARRANT

THE HIGH COURT

WARRANT pursuant to Section 7 of the Transfer of Sentenced Persons Act, 1995 – 1997

Applicant: The Minister for Justice, Equality and Law Reform

Sentenced Person: Fintan Paul O' Farrell

Sentencing State: The United Kingdom of Great Britain and Northern Ireland

Crime: (i) Conspiracy to Cause Explosions

(ii) Inviting Another to Provide Money or Property for the purposes of Terrorism

(iii) Entering into an Arrangement to make Money and Property available for Terrorism

Sentences in Sentencing State: (a) Twenty Eight Years Imprisonment for Conspiracy to Cause Explosions at (i) above

(b) Twelve years imprisonment concurrent to the said Twenty Eight Years Imprisonment for the offences (ii) and (iii) above

Date of Commencement of Sentences: 7th May, 2002’

9

Thus, in clear-cut terms, allowing for no ambiguity, the charges in respect of which sentences were imposed were set out. Likewise with the terms of imprisonment so imposed: firstly, on the conspiracy offence the term was twenty eight years, and, secondly, on the offences described at No's. (ii) and (iii) above, the respective terms were twelve years, both to run concurrently with the longer term. Finally, the due date for the commencement of the sentences was stated to be the 7th May, 2002.

10

In July, 2014, this Court delivered judgment in Sweeney v. Governor of Loughlan House Open Centre & Ors [2014] 2 I.R. 732; [2014] 2 I.L.R.M. 401 (‘ Sweeney’), which both legally and factually had a background not dissimilar to that of the instant case. Murray J. and Clarke J., in separate judgments, held that where a person had...

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