Minister for Justice and Equality v Laurence Kelly aka Gavin Nolan

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 10 December 2013
• Neutral Citation: [2013] IESC 54
• Docket Number: Appeal No. 316/2012
• Court: Supreme Court
• Date: 10 December 2013

Min for Justice v Kelly orse Nolan

Between/

The Minister for Justice and Equality

Applicant/Appellant

and

Laurence Kelly aka Gavin Nolan

Respondent

[2013] IESC 54

Appeal No. 316/2012

THE SUPREME COURT

EXTRADITION

European arrest warrant

Appeal from decision refusing surrender - Question certified for Supreme Court - Sentence - Incompatibility with State's obligations under European Convention on Human Rights - European arrest warrant - New form of sentencing obliging indeterminate sentences for public protection in United Kingdom - Indeterminate sentence - Tariff period - Absconding on temporary release - Indeterminate sentencing abolished by statute not applying retrospectively - Whether surrender contrary to State's obligations under European Convention on Human Rights - James v The United Kingdom (App Nos 25119/09, 57715/09 and 57877/09) (Unrep, ECHR, 18/9/2012) considered - European Arrest Warrant Act 2003 (No 45), ss 13 and 37(1)(a)(i) - European Convention on Human Rights 1950, art 5(1) - Appeal dismissed (316/2012 - SC - 10/12/2013) [2013] IESC 54

Minister for Justice and Equality v Kelly

Facts: The respondent had been sentenced for a determinate and indeterminate period in the UK. The High Court had refused to surrender the respondent to the UK. It had certified a question to the Supreme Court as to whether a sentence which the respondent had to serve in the UK was so contrary to the Constitution had surrender had to be refused. The Court considered whether the surrender of the respondent would be in breach of s. 37(1)(a)(i) of the European arrest warrant Act, 2003, as amended. The ECtHR had held that detention in the UK following the expiry of a tariff was in breach of the ECHR and subsequently, this prior law had been abolished.

Held by the Supreme Court per Denham CJ (Murray, MacMenamin JJ. concurring) in dismissing the appeal, that the respondent should not be surrendered to serve a term of imprisonment which had been found to be contrary to the ECHR. To surrender him would be in breach of Ireland”s obligations under the ECHR

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(A)(I)

JAMES & ORS v UNITED KINGDOM 2013 56 EHRR 12

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(1)

Denham C.J.

Judgment delivered by Denham CJ [Nem diss]

1 This is an appeal by the Minister for Justice and Equality, the applicant/appellant, referred to as "the appellant", against the judgment and order of the High Court (Edwards J.), delivered on the 24^th May, 2012.

2 The surrender of Laurence Kelly, aka Gavin Nolan, the respondent, referred to as "the respondent", was sought by the authorities in the United Kingdom pursuant to a European Arrest Warrant issued on the 5^th October, 2010, and was refused by the High Court.

3 The European Arrest Warrant was endorsed in accordance with s. 13 of the European Arrest Warrant Act,2003, as amended, and the respondent was arrested on the 24^th October, 2011, and brought to the High Court. The hearing of the request took place on the 8^th March and 12^th March, 2012, and on judgment being delivered on the 24^th May, 2012, surrender was refused and the respondent was discharged from the proceedings.

4 On the 18^th June, 2012, an application was made by the appellant for an order certifying a question for this Court. The learned trial judge granted the application and the order of the High Court was perfected on 25^th June, 2012. The certified question posed to this Court is:-

5 Is the sentence which the respondent is sought to serve so contrary to the scheme and order envisaged by the Constitution that surrender must be refused by the Court?

6 5. In the early hours of the 9^th April, 2005, in Kilburn, London, the respondent attacked a woman, committing the offences of attempted rape and assault causing actual bodily harm.

7 6. On the 4^th April, 2005, a new form of sentencing had come into force in the United Kingdom, which applied to offences committed after that date, and which, in certain circumstances, obliged a sentencing court to impose an indeterminate sentence for public protection.

8 7. On the 1^st August, 2005, the respondent pleaded guilty at Harrow Crown Court and on the 8^th November, 2005, he was sentenced to a determinate period of two and a half years imprisonment to be followed immediately by an indeterminate sentence for the protection of the public.

9 8. On appeal, the Court of Appeal Criminal Division in the United Kingdom varied the sentence, but only in that the imprisonment was to be served in a young offenders institution. Thus, the sentence had two parts. The first was the minimum term of imprisonment, sometimes referred to as the tariff period, which was a specified period, in this case two and a half years. The second part was open-ended, to protect the public, and was preventative in nature, and depended on assessment of future risk posed by a defendant. The Parole Board could only direct the release of a defendant once he was no longer a risk to the public. This two part sentence was called a sentence of imprisonment for public protection, referred to as IPP.

10 9. After serving approximately four and a half years detention, the respondent received his first hearing with the Parole Board, which did not recommend his release.

11 10. After serving five years and three months of his sentence the respondent absconded whilst on temporary release. His surrender was then sought in Ireland under the European Arrest Warrant.

12 11. The High Court refused to surrender the respondent to the United Kingdom and delivered a wide ranging judgment.

13 12. Material concerning the status and functioning of this statutory form of sentencing in the United Kingdom was tendered in evidence. This established that the Government in the United Kingdom had indicated a plan to abolish the indeterminate sentence. Following the publication of a Green Paper, the Government introduced the Legal Aid, Sentencing and Punishment of...