McK v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 25 April 2016
• Neutral Citation: [2016] IEHC 208
• Court: High Court
• Docket Number: [2016 No. 131 J.R.]
• Date: 25 April 2016

[2016] IEHC 208

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 131 J.R.]

BETWEEN

M. McK.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Crime & Sentencing – S. 6(3) of the Transfer of Sentenced Persons Act 1995 – Transfer of prisoners – Indefinite imprisonment for public protection – Refusal of transfer – Leave to seek an order of certiorari – Adaptation of sentence – Scope of judicial review

Facts: Following the decision of the respondent refusing the transfer of the applicant from the United Kingdom to the State of Ireland, the applicant now sought leave to apply for an order of certiorari for quashing the said decision of the respondent. The respondent alleged that since there was no sentence equivalent to the imposition of sentence of indefinite imprisonment for public protection in the State of Ireland, such transfer would require the making of an application before the High Court for adaptation of sentence, which could possibly be a determinate sentence of eight years imprisonment; thus, the transfer of the applicant would not be appropriate.

Mr. Justice Richard Humphreys refused to grant an order of certiorari to the applicant. The Court held that in an application for judicial review, the Court had to determine the arguability of the matter in hand. The Court observed that the respondent was vested with discretion to either accept or refuse the transfer of prisoners even if all the listed requirements under s. 6 (3) of the Transfer of Sentenced Persons Act 1995 had been met. The Court opined that the findings made by the respondent that the equivalent sentence in Ireland for indeterminate life imprisonment imposed upon the applicant would be eight years of imprisonment was just and reasonable. The Court held that the provision of rehabilitation and release of the applicant on parole for acknowledging his guilt available under the English law was not available in Ireland under an adapted determinate sentence; thus, it would not be appropriate to transfer the applicant from the jurisdiction of the transmitting country to Ireland. The Court held that it could not set aside the decision of the respondent unless the decision was irrational, unreasonable, or without any material or basis thereof.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of April, 2016

1 The applicant was born in 1972 and is currently 43 years of age. He states that he went to the United Kingdom from Ireland on 5th May, 1995.

2 In the U.K. he was charged with having, on various dates between 2001 and 2004, committed a range of sexual acts against his daughter and stepdaughter, being anal rape, indecent assault, indecency with a child, and inciting a child under thirteen to engage in sexual activity, namely oral sex.

3 He was duly convicted on all counts on 5th August, 2009.

4 On 4th December, 2009 he was sentenced to a term of life imprisonment by way of an indeterminate sentence for public protection with a minimum of 8 years on count 6 (one of the rape counts) and 6 years concurrently on the other counts. The 8 years was arrived at by the learned sentencing judge being of the view that 16 years was the appropriate minimum, to be subjected to a 50% discount for remission. This was in the context where remission does not apply to the minimum term to be served within a sentence of indeterminate detention for public protection. The applicant was also disqualified from working with children and subjected to sex-offender registration requirements.

5 He made an informal request in October, 2010 for transfer to this country to serve his sentence here. This was followed by a formal application by the U.K. Ministry of Justice on 8th September, 2011, and by the applicant himself in November, 2011.

6 On 6th July, 2012, a deportation order was made against him, by consent, by the U.K. authorities, which, assuming it continues in force, would have the effect of requiring him to come to Ireland on his release from the sentence of indefinite detention.

7 On 11th May, 2015, he instituted a first set of judicial review proceedings [2015 No. 238 J.R.] with a view to obtaining mandamus against the Minister requiring her to make a decision on the request for a transfer. These proceedings were compromised and struck out by agreement on the basis that a decision would be made.

8 Following this, the Minister issued a letter refusing the application dated 16th December, 2015. Against that refusal he now brings the present application seeking leave to apply for certiorari. I directed that the application be made on notice and have heard from Mr. Michael Lynn, S.C. (with Mr. Alan Brady, B.L.) for the applicant and Mr. Robert Barron, S.C. and Ms. Siobhán Ní Chúlacháin, B.L. (who also addressed the court), for the respondent.

The test for leave in G. v. D.P.P.

9 In G. v. D.P.P. [1994] 1 I.R. 374 at 377 to 378, Finlay C.J. set out the criteria for the grant of an ex parte application for leave. As developed by subsequent changes to the rules of court, and subsequent caselaw, the criteria can be summarised as follows:

(i) That the applicant ‘has a sufficient interest in the matter to which the application relates’ (p. 377);

(ii) That ‘an arguable case in law can be made that the applicant is entitled to the relief which he seeks’ (p. 378) on the basis of facts averred to, albeit that the court can also have regard at least to uncontradicted evidence adduced by a respondent who has been put on notice of the application. Of course in particular circumstances a higher threshold applies, such as where legislation requires substantial grounds, or where the grant of leave would itself be likely to determine the event ( Agrama v. Minister for Justice and Equality [2016] IECA 72 (22nd February, 2016) per Birmingham J. at para. 32);

(iii) That the application has been made within the appropriate time limit or that the Court is satisfied that it should extend the time limit in accordance with the applicable rules of court or legislation;

(iv) That ‘the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure’ (p. 378);

(v) That there are no other grounds to warrant refusal of leave. ‘These conditions or proofs are not intended to be exclusive and the court has a general discretion, since judicial review in many instances is an entirely discretionary remedy which may well include, amongst other things, consideration of whether the matter concerned is one of importance or of triviality and also as to whether the applicant has shown good faith in the making of an ex parte application’ (p. 378).

10 In the present case, the real issue is whether an arguable case has been made out.

The requirements of arguability

11 A claim is not arguable if it is clearly wrong; for example if it is ‘based on a fundamental misconception’ ( Agrama v. Minister for Justice and Equality [2016] IECA 72 per Birmingham J. at para. 33, see also para. 36). Furthermore it is not arguable if the point involved has already been decided in another case adversely to the position now being argued for, and the applicant does not demonstrate any clear basis as to why the previous decision ought to be departed from. Otherwise there would simply be no end to the litigation of stale points. Of course the door is open to an applicant to show that the law should move on since any earlier decision but a clear basis to do so must be shown.

12 A claim is not arguable merely because its consideration requires an amount, even a considerable amount, of debate and consideration by the court: by way of example see the very detailed judgments of Peart J. refusing leave in Duffy v. Clare County Council [2013] IEHC 51 (8th February, 212); and Kelly v. Flanagan [2014] IEHC 378 (26th June, 2014). An applicant does not establish substantial or even arguable grounds merely by weight of papers or number of grounds pleaded, or merely by virtue of the quantity of submissions, affidavits and time required to deal with the matter: see my judgment in O'Mahony Developments v. An Bord Pleanala [2015] IEHC 757 (27th November, 2015) at para. 50; R. v Local Government Commission for England ex p. North Yorkshire County Council (unreported, High Court (Queen's Bench Division), 11th March, 1994) (per Laws J.); and R. v. London Docklands Development Corporation ex p. Frost [1997] 73 P. & C.R. 199, per Keene J. at 204: ‘The approach of “never mind the quality, feel the width” has no application in these proceedings’.

What are the key reasons for the refusal?

13 The letter of 16th December, 2015, setting out the refusal decision is in a reasonable lengthy narrative form, setting out reasons over more than two pages.

14 It acknowledges that ‘the difficulties that your client has faced and will continue to face in light of his separation from his family are weighty factors in favour of the Minister consenting to his transfer’.

15 Mr. Lynn, in a very able argument on behalf of the applicant, accepts that there are essentially two reasons set out in this letter:-

(i) The sentence of indefinite imprisonment for public protection is unknown to Irish law, and therefore, transfer would require an application to the High Court to adapt the sentence. In those circumstances, ‘[t]he 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’. This is in the context where...