McK v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 25 April 2018
• Neutral Citation: [2018] IECA 110
• Docket Number: Record No. 2016 No. 254
• Court: Court of Appeal (Ireland)
• Date: 25 April 2018

BETWEEN

M.McK.

APPELLANT

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2018] IECA 110

Record No. 2016 No. 254

THE COURT OF APPEAL

Transfer of sentenced persons – Judicial review – Arguable grounds – Appellant seeking a formal transfer to the State under the Transfer of Sentenced Persons Act 1995-1997 – Whether the appellant had established arguable grounds such as would warrant the grant of leave to apply for judicial review

Facts: The appellant, in November 2011, applied for a formal transfer to the State under the Transfer of Sentenced Persons Act 1995-1997. The respondent, the Minister for Justice and Equality, refused the application on 16th December 2015. The appellant sought to quash that decision by way of judicial review proceedings. Having directed that the Minister be put on notice of the application for leave, Humphreys J ultimately held that the appellant had not made out arguable grounds such as would warrant the grant of leave for the purposes of the test articulated by the Supreme Court in G v Director of Public Prosecutions [1994] 1 IR 374 at 377-378. The appellant appealed to the Court of Appeal and the Court heard that renewed application for leave on notice to the Minister.

Held by Hogan J that the Minister considered the application and then gave detailed reasons for that refusal; those reasons, which centred on the difficulties posed by the nature of the appellant’s sentence of what was described in UK legislation (s. 225 of the (UK) Criminal Justice Act 2003) as an “indeterminate sentence for public protection”, were clearly bona fide, factually sustainable and were not unreasonable. In those circumstances, Hogan J held that the appellant had not established any arguable grounds within the meaning of the G. test such as would warrant the grant of leave to apply for judicial review.

Hogan J held that he would affirm the decision of Humphreys J and dismiss the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 25th day of April 2018

1 Where a Minister is permitted by statute to operate a particular scheme or arrangement on a discretionary basis, is he or she obliged to continue to operate that scheme even though it has been shown to present difficulties in the past and is likely to continue to do so in the future if it is so operated? That, in essence, is the question presented on this appeal from the decision of the High Court (Humphreys J.) refusing the applicant leave to apply for judicial review: see M.McK. v. Minister for Justice and Equality [2016] IEHC 208.

2 The background to the present appeal is as follows: the applicant (Mr. M.) is an Irish national who has been living in the United Kingdom since 1995. In August 2009 he was convicted in the U.K. of a series of very grave sexual offences against his daughter and step-daughter. In December 2009 Mr. M. received a sentence of what was described in the UK legislation (s. 225 of the (UK) Criminal Justice Act 2003) as an “indeterminate sentence for public protection” (“IPP”). This IPP was to last for an initial tariff period of eight years, subject to review by the UK parole authorities. The sentencing judge took the view that a 16 year sentence was the appropriate minimum sentence, subject to the appropriate (and under UK law, automatic) 50% statutory remission. It appears that IPP sentences are no longer imposed following legislative change in the UK in 2012 (Legal Aid, Sentencing and Punishment of Offenders Act 2012).

3 It needs to be said at the outset that the IPP sentence imposed in the present case is quite unknown in Irish law and it is not easy to see how a sentence of this nature can readily be adapted or even understood by reference to the traditional Irish sentencing regime. These difficulties are at the heart of the present appeal.

4 In November 2011 Mr. M. applied for a formal transfer to this State under the Transfer of Sentenced Persons Act 1995-1997 (“the 1995 Act”). No decision was apparently made by the Minister for Justice in respect of that original application and the applicant subsequently commenced mandamus proceedings seeking to compel the Minister to make such a decision. Those proceedings were compromised and struck out by agreement on the basis that a decision would be made.

5 The Minister ultimately made a decision refusing the application for a transfer under the 1995 Act on 16th December 29015. In the present proceedings the applicant seeks to quash that decision by way of judicial review proceedings. Having directed that the Minister be put on notice of the application for leave, Humphreys J. ultimately held that the applicant had not made out arguable grounds such as would warrant the grant of leave for the purposes of the test articulated by the Supreme Court in G. v. Director of Public Prosecutions [1994] 1 I.R. 374 at 377-378. The applicant has now appealed to this Court and this Court heard that renewed application for leave on notice to the Minister.

The reasons for the Minister's decision to refuse to consent to a transfer under the 1995 Act

6 The letter of the 16 ^th December 2015 set out the Minister's decision to refuse to grant the application in some detail. While it is acknowledged the difficulties which Mr. M. and his family will face by reason of the fact that his detention in the U.K. meant he was separated from his family in Ireland, two fundamental reasons were nonetheless advanced as to why the transfer request was to be refused.

7 First, the Minister observed that the sentence of indefinite imprisonment for public protection was unknown to Irish law, and. therefore, transfer would require an application to the High Court to adapt the sentence. She further observed that the:

“only sentence that could be imposed without it appearing to involve an aggravation of the duration of the sentence would be an eight year sentence. That would be significantly less than the sixteen year period which the trial judge in the United Kingdom considered to be the appropriate period had he imposed a determinate sentence.”

8 The second fundamental reason advanced by the Minister was that “it would not be consistent with the promotion of social rehabilitation to transfer your client to Ireland in circumstances in which he denies the offence”. This denial would be considered to be “a very negative factor in attempts to rehabilitate him”, and would make it unlikely that he would be considered suitable to be held in Arbour Hill Prison, the national centre of excellence for rehabilitating sexual offenders.

The judgment of the High Court

9 In the High Court Mr. M. sought to challenge the Minister's decision on the grounds (i) that the Minister had in essence fettered her own discretion and (ii) had wrongly taken upon herself the task of predicting or assessing how an Irish court might view for equivalence purposes the nature of the IPP sentence. Humphreys J. held that the scheme provided by the 1995 Act was discretionary in nature and that the Minister could not be faulted for concluding that the transposition of the IPP sentence into Irish law was itself likely to be problematic. On this latter point Humphreys J. observed:

“According to the British authorities, an indeterminate sentence for public protection is a sentence of life imprisonment (see letter dated 8th September, 2011 from Ministry of Justice to the Prisons and Probation Policy Division of the respondent's Department). That might suggest that the appropriate adapted sentence would be a sentence of life imprisonment, although the applicant was not quite making an admission in this regard and more based the application on the argument that a longer determinate sentence would have been equivalent to the 8 year minimum. The fact that the applicant was canvassing at least 3 possible corresponding sentences demonstrates (if such be needed) an anxiety to keep his options open in this regard, which necessarily involves a reservation of an entitlement to change the ground rules through a subsequent Article 40 application if transferred here. The three possibilities discussed were as follows:

(i) a life sentence;

(ii) a sentence of 10 years and 8 months; or

(iii) a sentence of 8 years (which the applicant rejects).

31. As regards the first option, Mr. Barron [counsel for the Minister] relies on the High Court decision in Minister for Justice and Equality v. Nolan [2012] IEHC 249 per Edwards J., 24th May, 2012), upheld as to the ECHR aspect in Minister for Justice and Equality v. Kelly [2013] IESC 54 ( per Denham C.J., (Murray and MacMenamin JJ. concurring), 10th December, 2013), which holds that an indefinite sentence for public protection is not compatible with Irish law. That authority seems hard to immediately reconcile with the notion that the indefinite sentence for public protection can be equated with a life sentence.

32. As regards the second option, Mr. Lynn [counsel for the applicant] suggests that a sentence of ten years and eight months would be the equivalent to eight years without remission, because applying the Irish 25% remission rate to a sentence of ten years and eight months would yield the same result as applying the English 50% remission rate to a sentence of sixteen years.

33. In Sweeney v. Governor of Loughan House [2014] IESC 42 Clarke J. distinguished between the differing effects of a sentence of 16 years,...