Minister for Justice v Balmer

CourtSupreme Court
JudgeMs. Justice Dunne,O'Donnell J.
Judgment Date12 May 2016
Neutral Citation[2016] IESC 25
Docket Number[S.C. No. 29 of 2015],[S.C. No. 29 of 2015] [S: AP: IE: 2015: 000029]
Date12 May 2016

Denham C.J.

O'Donnell J.

MacMenamin J

Dunne J.

Charleton J.

O'Malley J.

Michael Anthony Balmer
The Minister for Justice and Equality

[2016] IESC 25

O'Donnell Donal J.

Dunne J.

[S.C. No. 29 of 2015]

[S: AP: IE: 2015: 000029]


Crime & sentencing – Extradition – European Arrest Warrant – Former prisoner convicted of murder in UK & entering State – Opposition to application for surrender back to UK

Facts: The appellant had been convicted of murder in the UK and had served the punitive element of his sentence. At some point after his release on licence, he had entered the State. The UK sought his return under an European Arrest Warrant as he was alleged to have breached his licence. The appellant opposed his surrender on the basis his return would breach the Constitution. The High Court had granted an order for surrender, and had been supported in this decision in the Court of Appeal. The appellant now sought to challenge the grant in the Supreme Court.

Held by O?Donnell J, that the appeal would be dismissed. The appellant?s argument that his surrender to serve solely the preventative element of his sentence was unconstitutional was not sufficient to prevent his release. In addition, the provision of information as to his recall by the UK, as well as the means to appeal that recall ensured that fair procedures existed to ensure that the Constitution was not offended.

Minister for Justice, Equality and Law Reform v Brennan [2007] 3 IR 73, Caffrey v Governor of Portlaoise Prison [2012] 1 IR 637 and Minister for Justice, Equality and Law Reform v Murphy [2010] 3 IR 77 considered.

Dunne J also gave a judgment in the matter.

Judgment of O'Donnell J. delivered on the 12th day of May 2016

Michael Anthony Balmer is a subject of the United Kingdom (?UK?) and of British nationality. He was born in 1951 and has resided and lived most of his life in the United Kingdom. On the 26th of July, 1983, when he was 32 years of age, he entered the house of a 62 year old female neighbour on false pretences, intending to steal car keys. His neighbour resisted and he attacked her, strangled her, and later sexually assaulted the body. On the 26th of March, 1984, he was convicted of murder at Exeter Crown Court and received a sentence of life imprisonment, which was the mandatory sentence for the offence of murder in the UK as indeed it is in Ireland.


While the terms and the precise statutory regime under the law of England and Wales may require further explanation, it is sufficient for present purposes to say that a ?tariff? was fixed at the time of sentencing at 12 years initially, but was later extended by ministerial decision (which was then permissible under UK law) to 15 years. This was the minimum period a convicted person was required to serve before becoming eligible to be considered for parole. The tariff is said to reflect the ?punitive? element of the sentence. After expiry of the tariff period, a life sentence prisoner can only be detained further if it is considered, originally by the Secretary of State for Home Affairs and subsequently by an independent parole board, that he or she poses a risk to the community if released. If it is considered that the convicted person does not pose such a risk, then he or she is released on licence which remains in force for the remainder of their life. The licence can be revoked at any time if it is considered necessary on public protection grounds. The process is subject to review at a number of points. An independent parole board chaired by a judge must consider the case and may refuse to reactivate the sentence. At that hearing, the prisoner has a right to be present, to be legally represented, and to call and question witnesses. When a life sentence prisoner (?lifer?) is released on licence and then recalled, he will then be given confirmation of the reasons for the recall, the information upon which the decision was based, and information as to how to make representations or to appeal to the parole board against the decision. During that process, however, the lifer is in custody.


In Mr. Balmer's case, the extended tariff expired in 1999. Thereafter, he was detained for what was described as the ?risk? phase of the sentence. On the 2nd of March, 2011, presumably on the advice of the Parole Board, Mr. Balmer was released on licence on standard, although strict terms, including permanent residence at a specific location, and a requirement not to travel outside the United Kingdom without prior permission of a supervising officer. There was also a requirement to report on a regular basis, and to only undertake work with the permission and approval of the supervising officer, and further to notify the supervising officer of any developing relationships with women or men. Finally, there was a requirement not to enter a defined area in Exeter save for the purpose of transit. These conditions make it clear, therefore, that the life sentence continued to have effect for the life of the convicted person even when released into the community.


Just over one year later, on the 19th of March, 2012, Mr. Balmer's licence was revoked. The revocation notice issued to him was a standard form containing a number of boxes identifying possible reasons for revocation. Two of these were ticked, namely ?allegedly committed a further offence? and ?poor behaviour?. The form also stated that the person would be given confirmation of the reasons why they had been recalled to prison, the information upon which the decision had been taken, and an explanation of how to make representation to the Parole Board against the decision to recall. No other information was contained in the notification of revocation.


Mr. Balmer is now resident in Ireland. It is not clear if Mr. Balmer travelled to Ireland before or after the revocation; nor is it clear whether entry into this jurisdiction was itself a breach of a term giving rise to revocation. It is also not suggested that Mr. Balmer has any other connection to this jurisdiction other than his arrival here at some point between his release on licence and his arrest. A European Arrest Warrant (?EAW?) was issued for his arrest on the 31st October, 2012, and endorsed for execution in this State on the 21st of November of that year. It was eventually executed in Cork on the 11th of June, 2013, and Mr. Balmer was brought before the High Court the following day. Since that date he has been remanded in custody, pending the outcome of these proceedings.


Mr. Balmer has objected to surrender on grounds that the surrender would constitute a contravention of the Irish Constitution insomuch as his return would be to serve a sentence which at this stage would be purely preventative in nature. It is also said that return would contravene the Constitution and be incompatible with the State's obligation under the European Court of Human Rights in that the United Kingdom's procedures did not provide for any hearing before a licence was revoked and a person recalled to custody.


The matter came before the High Court together with a similar case, which has now been discontinued due to the death of the respondent. Edwards J. delivered a lengthy judgment, relying on the majority judgment of this Court in Caffrey v. Governor of Portlaoise Prison [2012] 1 I.R. 637 ( ? Caffrey?) and distinguishing his own judgment in Minister for Justice and Equality v. Nolan [2012] I.E.H.C. 249 ( ? Nolan?) in rejecting the grounds of opposition and making an order for surrender. It may be useful at this point to deal briefly with the terms of the Caffrey and Nolan judgments, since they figured prominently in the argument in this case.

The decisions in Caffrey and Nolan

Caffrey dealt with a situation which might be considered to be the reverse of this case. There, a prisoner serving a life sentence in the United Kingdom regime, having had a tariff fixed by the presiding judge, sought and obtained transfer to Ireland under the provisions of the Transfer of Sentenced Persons Acts 1995-1997. He argued that he was entitled to be released once the UK tariff period had passed on the grounds that, as he contended, service of the sentence for the purposes of prevention was incompatible with Irish law. A minority of the Supreme Court (Murray and Fennelly JJ.) agreed. However, the majority (Denham C.J., Hardiman and Macken JJ. concurring) held that the sentence involved was a life sentence which was not incompatible with Irish law, and could accordingly be administered in accordance with Irish law. In essence, this was a conclusion that the concept in the practice in the UK of a tariff, and the punitive/risk distinctions, which did not exist in Irish law, were matters of administration of a life sentence and did not concern its legal nature.


Nolan was concerned with a separate development in sentencing law in the UK which had followed, it seems, from the manner in which the law on life sentences had developed. The fact that the decision on the length of time a prisoner spent in prison was made on an assessment of the risk that person posed to the community (or more accurately, the fact that release was only possible if it was considered the prisoner did not pose a risk), which was a consequence of the mandatory life sentence, was sought to be expanded into other areas of sentencing. In Nolan, the respondent had pleaded guilty to rape, and was sentenced in November, 2005. Earlier that year, a new and novel sentencing regime had been introduced for ?serious cases?, which allowed the court in certain circumstances to impose a sentence of imprisonment for public protection (IPP). Such sentences were open-ended and depended on an assessment of future risk. The parole board could only direct release once an individual prisoner was...

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2 books & journal articles
  • The Curious Case of Artur Celmer
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