O'Farrell v The Governor of Portlaoise Prison
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Mr. Justice Cian Ferriter |
| Judgment Date | 12 January 2023 |
| Neutral Citation | [2023] IEHC 13 |
| Docket Number | [Record No. 2016/9611 P] [Record No. 2016/9610 P] |
[2023] IEHC 13
[Record No. 2016/9611 P]
[Record No. 2016/9612 P]
[Record No. 2016/9610 P]
THE HIGH COURT
JUDGMENT of Mr. Justice Cian Ferriter delivered on the 12 th day of January 2023
In these proceedings, the plaintiffs claim “substantial” damages for false imprisonment. The false imprisonment is said to arise from their detention in Portlaoise prison between 27 September 2006 and 11 September 2014. They were detained during that period on foot of warrants issued by the High Court in July 2006 under s.7 of the Transfer of Sentenced Persons Act 1995 (as amended) (“the 1995 Act”).
The 1995 Act provides a mechanism for the transfer back to this State of persons convicted and sentenced abroad who wish to serve out the balance of their sentences in Ireland. The plaintiffs were convicted of serious terrorist offices in England in 2002 and sentenced to 28-year prison sentences there. They successfully applied to be transferred back to the State under the 1995 Act to serve out the balance of those sentences here. Following a decision of the Supreme Court in a separate case relating to the detention of a transferred prisoner under the 1995 Act (the Sweeney case), the plaintiffs successfully applied to the High Court under article 40 to have their detention in Portlaoise prison declared unlawful on the basis that the warrants issued under the 1995 Act authorising their detention there were defective. They were released on 11 September 2014 having spent only some 13 years in prison when, pursuant to their English sentences, they would have been required to spend some 18 years 8 months in prison (subject to remission). The Supreme Court by a 4–3 majority decided in July 2016 to uphold the decision of the High Court.
As there was no legal mechanism under the 1995 Act (or otherwise) for their re-confinement in Ireland, the plaintiffs have been free since their release pursuant to article 40 in September 2014. The plaintiffs claim that it inexorably follows from their successful challenges to the lawfulness of their detention that they are now entitled to damages for false imprisonment. The defendants have mounted a vigorous defence of the claims.
The case raises some potentially significant questions about the scope of the tort of false imprisonment in Irish law.
The background to the conviction and imprisonment of the plaintiffs is as follows. The plaintiffs were members of an illegal organisation styling itself as the Irish Republican Army and known as the Real IRA. During the course of 2001 (a relatively short period after the horrific bombing carried out by the Real IRA in Omagh which led to 29 deaths), the plaintiffs travelled to Slovakia for the purposes of seeking arms and financial support from persons they believed to be agents of the Iraqi Intelligence Service. A series of meetings with these agents were had. There was evidence given at their trial before Woolwich Crown Court in England that the plaintiffs were seeking to acquire 5,000 kilograms of plastic explosives, 2,000 detonators, 200 rocket-propelled grenades, 500 handguns and $1.5 million to be paid over six months. To put that in context, it was explained at their trial that about 1.5 kilograms of plastic explosives is used in a car bomb. In fact, the parties with whom the plaintiffs were dealing with were undercover British agents. The plaintiffs were arrested in Slovakia on 5 July 2001. They were extradited to the United Kingdom on 30 August 2001. They were tried before Woolwich Crown Court and convicted of serious terrorist offences, being the offences of conspiracy to cause explosions, inviting another to provide money or property for the purposes of terrorism and entering into an arrangement to make money and property available for terrorism.
On 7 May 2002, the trial judge (Astill J.) sentenced the plaintiffs to 30 years' imprisonment for the offence of conspiracy to cause explosions and concurrent sentences of 12 years for the offences of “inviting another to provide money or property for the purpose of terrorism” and “entering into an arrangement to make money and property available for terrorism”. The sentences were backdated to 5 July 2001, the date on which the plaintiffs were taken into custody in Slovakia. The plaintiffs appealed the severity of the sentences to the Court of Appeal of England and Wales. On 15 July 2005, that Court set aside the original term of 30 years imprisonment and substituted a sentence of 28 years imprisonment for the conspiracy to cause explosions offences. The 12-year concurrent sentences for the other offences were left intact.
As the plaintiffs' convictions became final at that point, they became eligible for transfer to serve their sentences in Ireland under the provisions of the 1995 Act which implements into Irish law the provisions of the Convention on the Transfer of Sentenced Persons signed in Strasbourg in March 1983 (“the Convention”).
The scheme established by the Convention as implemented into Irish law in the 1995 Act is broadly as follows.
The 1995 Act applies when a person has been sentenced in another Convention State (“the sentencing state”) and wishes to be transferred to a prison in this jurisdiction to serve his or her sentence. The sentenced person or the sentencing state requests the Minister for Justice (“the Minister”) to consent to the transfer. If certain requirements are met (including that the order under which the sentence was imposed in the sentencing state is final and that the sentenced person consents in writing to the transfer), the Minister may consent to the request for transfer. If the Minister proposes to consent to such a transfer, the Minister must provide certain information to the sentenced person, including information as to the effect on that person of any warrant which may be issued under s.7. Following such consent, the Minister must apply to the High Court for the issue of a warrant authorising the bringing of the sentenced person into the State and the taking of the person to and his or her detention in custody. The High Court, if satisfied that the requirements of the 1995 Act are met and that the Minister consents, shall issue a warrant authorising the bringing of the requested person into the State and the taking of the person to, and his or her detention in, specified places for custody. Pursuant to s.7(4), the effect of this warrant is to authorise the continued enforcement by the State of the sentence imposed by the sentencing state in its legal nature and duration, with due regard to any remission accrued in the sentencing State, but such a warrant shall otherwise have the same force and effect as a warrant imposing a sentence following conviction by that Court.
Importantly, the 1995 Act (as amended in 1997) seeks to address situations where the sentence imposed by the sentencing state is “by its legal nature” incompatible with the law of the State. In such a case, the High Court may adapt the legal nature of the sentence “to that of a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed” (s.7(5)(a)). There is also provision made for a situation where the duration of the sentence imposed by the sentencing state is incompatible with the law of the State. In such a case, the Minister has a discretion as to whether to apply to adapt the duration of the sentence. The provisions of the 1995 Act as amended in 1997 (in s.7(6)) make clear that where a sentence is being adapted by virtue of either its legal nature or duration being incompatible with the law of the State, the adapted sentence cannot aggravate the sentence imposed in the sentencing state or exceed the maximum penalty prescribed by the law of the State for a similar offence.
Other material provisions of the 1995 Act include s.7(7) which prohibits an appeal in the State against the conviction in respect of which the sentence was imposed and s.7(10) which states that a reference to the legal nature of a sentence does not include a reference to the duration of such a sentence.
Following their sentence appeal, the plaintiffs sought their transfer to Ireland to serve out the remainder of their prison sentences here, pursuant to the terms of the 1995 Act. They had the assistance of an Irish solicitor in that regard. Correspondence was engaged in on their behalf with the English and Irish authorities. The Minister indicated agreement to the plaintiffs being transferred and set out through correspondence of a department official his understanding of the basis of the plaintiffs' transfer. The plaintiffs signed consent forms agreeing to be transferred on the basis set out in this correspondence. I will come to the terms of that correspondence and consent in more detail later in this judgment.
Ultimately, the Minister for Justice made an application to the High Court ex parte on 28 July 2006. On that date, this Court issued a warrant pursuant to s.7 of the 1995 Act providing for the transfer of the plaintiffs to the State and their detention in Portlaoise prison.
Given the centrality of the contents of the warrants to the arguments in the case, I set out the terms of...
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