Minister for Justice and Equality v Anthony Craig and Another

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Michael Peart
Judgment Date21 May 2015
Neutral Citation[2015] IECA 102
Date21 May 2015

[2015] IECA 102

THE COURT OF APPEAL

Peart J.

Hogan J.

Mahon J.

Record No.: 37/2014
Record No.: 55/2014
Min for Justice v Craig & Balmer
IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003
BETWEEN/
MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
-AND-
ANTHONY CRAIG
APPELLANT
IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003
BETWEEN/
MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
-AND-
ANTHONY BALMER
APPELLANT

European arrest warrants – Murder – Detention – Appellants seeking to appeal against an order for surrender – Whether surrendering appellants to the UK so that they can be placed in detention for preventative purposes would constitute a breach of their constitutional rights

Facts: The first appellant, Mr Craig, was convicted of murder at Preston Crown Court in February 1974 and received a mandatory sentence of life imprisonment. Under the rules then prevailing the Home Secretary directed that he serve a minimum term of 15 years (the tariff). Mr Craig served his tariff but his detention was continued thereafter so that by the time he escaped in July 2002 from an open prison to which he had been transferred he had served some 28 years imprisonment. He came to Ireland in 2005, where he has settled and married. The UK authorities sought his surrender so that he could be returned to prison to serve out his life sentence and so that he could be prosecuted for the offence of escape contrary to common law. Mr Balmer was convicted of murder at Exeter Crown Court in March 1984, and received a mandatory life sentence with a tariff of 12 years. This tariff was later increased to 15 years. Having served the tariff representing the punitive element of the life sentence, his detention was continued by the Parole Board on the basis that this was necessary for the protection of the public. However, in March 2011 he was released on licence by the Home Secretary. He came to Ireland shortly after his release, presumably without having obtained prior permission to so do. In March 2012, the Secretary of State signed a Revocation of Licence recalling Mr Balmer to prison. In each case a European arrest warrant was transmitted to the Irish jurisdiction by the relevant issuing judicial authority in the UK. Upon receipt, each was duly endorsed for execution by the High Court, and Mr Craig and Mr Balmer were arrested and brought before the High Court as required. The High Court certified that the decision in each case involved a point of exceptional importance and that it was desirable in the public interest that an appeal to the Court of Appeal be taken. The issue which arose for consideration was whether surrendering each appellant to the UK so that they can be placed in detention for preventative purposes would constitute a breach of their constitutional rights under Article 40 of the Constitution, given the constitutional imperative that no person may be deprived of his or her liberty on the grounds that there is a risk that he or she may commit a crime at some future date. The respondent, the Minister for Justice and Equality, argued that it is Article 38 of the Constitution that is engaged in this case rather than Article 40, and submitted that in such circumstances s. 37 of the European Arrest Warrant Act 2003 presents no bar to surrender since there is no causal connection or direct proximity between the act of surrender and any dilution of the presumption of innocence in the future. That situation was distinguished by the appellants, who submitted that their surrender itself would inevitably result in their immediate and indefinite detention known to be for preventative purposes only, a situation which is constitutionally impermissible in Ireland. The appellants submitted that it is the act of surrender itself which would constitute the breach of their constitutional rights under Article 40.4 of the Constitution. They submitted the trial judge erred in making an order for their surrender under s. 16 of the Act.

Held by Peart J that, having considered Minister for Justice and Equality v Nolan [2012] IEHC 249, a case relied upon by the appellants, the indeterminate sentence of imprisonment for public protection in that case was a distinguishable situation; that was a sentence of indefinite length, not a life sentence. Similarly, Peart J held that what was said in Whelan & Lynch v Minister for Justice, Equality and Law Reform & ors [2012] 2 IR 1, relied upon by the appellants, must be read as referring not to the means by which a person prior to his release is considered for release by a Parole Board by reference to considerations such as risk and dangerousness, but rather to measures whereby persons are taken out of society or kept out of society, not for the purposes of punishment but only so that they will be unable to commit offences.

Peart J held that there was no error on the part of the trial judge in the reasoning and conclusion which he reached in the appellants” cases. The issue certified by the trial judge for the consideration of the Court was answered by stating that to surrender the appellants to serve the balance of their life sentence does not constitute a contravention of any provision of the Constitution, and in particular of Article 40.4 thereof, such that the contemplated surrender would be prohibited by s. 37(1)(b) of the 2003 Act.

Appeal dismissed.

1

Following the making of an order for the surrender of each appellant on foot of separate European arrest warrants to the authorities in the United Kingdom by separate orders dated 18 th November 2014, Edwards J. certified that the decision in each case involves a point of exceptional importance and that it is desirable in the public interest that an appeal be taken. The point of exceptional importance is the same in each case, hence these appeal have been heard together, albeit that each appellant has separate legal representation.

2

The issue so certified in each case is:

"Where the requested person has been sentenced in the United Kingdom to a life sentence for murder, and has served a portion of the sentence consisting of his/her individualised tariff and which is said by the issuing state to have constituted the entirety of the punitive element of the said sentence, would the surrender of that person to serve the balance of his/her sentence constitute a contravention of any provision of the Constitution of Ireland, and in particular of Article 40.4 thereof, such that the contemplated surrender would be prohibited by Section 37 (1) (b) of the European Arrest Warrant Act, 2003?"

Some background facts:
3

Mr Craig was convicted of an offence of murder at Preston Crown Court on the 12 th February 1974 and received a mandatory sentence of life imprisonment. Under the rules then prevailing the Home Secretary directed that he serve a minimum term of 15 years (the tariff). According to information contained in the European arrest warrant in respect of Mr Craig this tariff reflects the punitive element of the sentence, and once the punitive element has expired the offender enters upon the risk element of the sentence, and may only be detained if he continues to present a risk to the public. It further states that once the tariff has been served, the independent Parole Board chaired by a judge conducts a review in order to determine if the offender's detention should be continued beyond the tariff, and that the basis of that decision is whether a continuation of detention is necessary for the protection of the public. If it is not, the offender is released on licence. If the decision is that the offender should not be released, then a further review must take place within two years and at regular intervals thereafter.

4

It appears that Mr Craig served his tariff but his detention was continued thereafter so that by the time he escaped in July 2002 from an open prison to which he had been transferred he had served some 28 years imprisonment. According to his affidavit sworn on the 31 st July 2013, he came to Ireland in 2005, where he has settled and married.

5

The fact that he escaped from the open prison to which he had been transferred has resulted in the authorities in the United Kingdom seeking his surrender not only so that he can be returned to prison to serve out his life sentence, but also so that he can be prosecuted for the offence of escape contrary to common law which itself carries a discretionary maximum penalty of life imprisonment. In passing, the Court notes that Edwards J. has concluded that the offence of escape contrary to common law in the United Kingdom corresponds to the same offence in this State, and has ordered his surrender so that Mr Craig can be prosecuted there for that offence. In other words, even if the result of the present appeal is favourable to Mr Craig in respect of the sentence for murder, he will in any event be surrendered in respect of the alleged offence of escape contrary to common law. That of course does not affect the Court' decision on the issue certified for an appeal by the trial judge.

6

Mr Balmer was convicted of an offence of murder at Exeter Crown Court on the 26 th March 1984, and received a mandatory life sentence with a tariff of 12 years. It appears that this tariff was later increased to 15 years. Having served the tariff representing the punitive element of the life sentence, his detention was continued by the Parole Board on the basis that this was necessary for the protection of the public.

7

However, on the 2 nd March 2011 he was released on licence by the Home Secretary, having by that time spent some 27 years in prison. He was released on licence subject to a number of conditions which are set forth on the licence document given to him. These include that he report to, and place himself under the supervision of, a...

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3 cases
  • Minister for Justice v Balmer
    • Ireland
    • Supreme Court
    • 12 May 2016
    ...dated 21 May 2015, the Court of Appeal (Peart and Mahon JJ.; Hogan J. dissenting) confirmed the High Court order (see [2015] IECA 89 and [2015] IECA 102). By application for leave and notice of appeal dated 9 June 2015, the respondent sought leave to appeal to the Supreme Court. On 20 July ......
  • Balmer v Minister for Justice and Equality
    • Ireland
    • Supreme Court
    • 20 July 2015
    ...to this Court from the decision of the Court of Appeal delivered on the 21st day of May 2015: judgment of Peart J, Mahon J agreeing, [2015] IECA 102, Hogan J dissenting in a separate judgment; [2015] IECA 89. 2 The applicant was convicted of murder at Exeter Crown Court on 26 March 1984. He......
  • Craig v Minister for Justice and Equality
    • Ireland
    • Supreme Court
    • 20 July 2015
    ...to this Court from the determination of the Court of Appeal delivered on the 21st day of May 2015: judgment of Peart J, Mahon J agreeing [2015] IECA 102, Hogan J dissenting in a separate judgment; [2015] IECA 89. 2 The issues raised on this application are similar to those argued on the app......

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