O'Farrell v The Governor of Portlaoise Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cian Ferriter |
| Judgment Date | 12 January 2023 |
| Neutral Citation | [2023] IEHC 13 |
| Court | High Court |
| 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
False imprisonment – Damages – Liability – Plaintiffs seeking damages – Whether the first defendant was liable in false imprisonment
Facts: The plaintiffs, Mr O’Farrell, Mr Rafferty and Mr McDonald, were convicted of serious terrorist offices in England in 2002 and sentenced to 28-year prison sentences. They successfully applied to be transferred back to the State under the Transfer of Sentenced Persons Act 1995 (as amended) to serve out the balance of those sentences. Following a decision of the Supreme Court in a separate case relating to the detention of a transferred prisoner under the 1995 Act (Sweeney v Governor of Loughan House Centre [2014] 2 IR 732), the plaintiffs successfully applied to the High Court under article 40 of the Constitution 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. The plaintiffs claimed “substantial” damages for false imprisonment. The plaintiffs claimed that it inexorably followed from their successful challenges to the lawfulness of their detention that they were entitled to damages for false imprisonment.
Held by the High Court (Ferriter J) that the plaintiffs were detained pursuant to warrants issued wholly without jurisdiction, which were bad on their face and the first defendant, the Governor of Portlaoise prison, was therefore liable in false imprisonment. Ferriter J did not believe that a defence of consent was available to the defendants in respect of the tort of false imprisonment on the facts. In his view, the plaintiffs were not prevented by the doctrines of consent, waiver or acquiescence from seeking to claim relief for false imprisonment. In his view, the principles outlined by Murray J in the Court of Appeal in G.E. v Commissioner of An Garda Síochána & ors [2021] 2 ILRM 441 and Hogan J in the Supreme Court upholding the appeal in that case ([2022] IESC 51) sufficiently encompassed the question of the conduct of the plaintiffs being weighed appropriately in any assessment of an equitable level of compensatory damages and Ferriter J did not believe there was a self-standing basis upon which, notwithstanding the principles outlined by Murray J and Hogan J, the plaintiffs could be separately held to be entitled only to contemptuous damages (which would amount to the smallest legal tender being 1 cent or 5 cent, on the defendants’ submission). In Ferriter J’s view, such an approach would run counter to the principles set out in G.E., which required a structured approach to the question of assessment of damages for false imprisonment, commencing from the starting point that a plaintiff who has been the subject of false imprisonment is entitled to some compensatory damages given the importance of the right protected by the tort. It seemed clear to him that there was no readily available or reliable scale of appropriate level of compensation for false imprisonment arising on the authorities.
Ferriter J held that, accepting that the plaintiffs were entitled to some level of compensatory damages, an equitable level of damages on the facts was a sum of €2,500 to each plaintiff by way of damages for false imprisonment. Ferriter J arrived at that figure having regard to the principles set out in G.E. and Simpson v Governor of Mountjoy Prison [2020] 1 ILRM 81.
Damages awarded.
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...
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Mcdonald, Farrell & Rafferty v Governor of Portlaoise Prison
...on 12 January 2023, awarded each of the plaintiffs, Mr Rafferty, Mr O’Farrell and Mr McDonald, damages for false imprisonment of €2,500: [2023] IEHC 13. The plaintiffs sought their full Circuit Court costs, to include a certificate for senior counsel, on the basis that they were entirely su......