Nascimento v Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 26 October 2007
• Neutral Citation: [2007] IEHC 358
• Court: High Court
• Date: 26 October 2007

[2007] IEHC 358

THE HIGH COURT

[No. 127 JR/2007]

Nascimento v Min for Justice & Ors

BETWEEN

PAULO NASCIMENTO

APPLICANT

AND

MINISTER FOR JUSTICE EQUALITY, AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

TRANSFER OF SENTENCED PERSONS (AMDT) ACT 1997

TRANSFER OF EXECUTION OF SENTENCES ACT 2005

CRIMINAL JUSTICE ACT 1990 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

PENAL CODE OF THE REPUBLIC OF PORTUGAL 1982 ART 61

TRANSFER OF SENTENCED PERSONS ACT 1995 S4

TRANSFER OF SENTENCED PERSONS ACT 1995 S10

TRANSFER OF SENTENCED PERSONS ACT 1995 S10A

TRANSFER OF SENTENCED PERSONS ACT 1995 S10B

TRANSFER OF SENTENCED PERSONS ACT 1995 S4(3)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 3

MISHRA v MIN FOR JUSTICE 1996 1 IR 189

O'NEILL v MIN FOR AGRICULTURE & FOOD 1998 1 IR 539 1997 2 ILRM 435

ASSOCIATED PROVINCIAL PICTUREHOUSE LTD v WEDNESBURY CORP 1948 1 KB 223

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

KEEGAN, STATE v STARDUST COMPENSATION TRIBUNAL 1986 IR 64

OSAYANDE & LOBE v MIN JUSTICE 2003 1 IR 1

SIAC CONSTRUCTION LTD v MAYO CO COUNCIL 2002 3 IR 148 2002 2 ILRM 401

MEADOWS v MIN JUSTICE & ORS UNREP GILLIGAN 19.11.2003 2003/34/8235

CRIMINAL JUSTICE (TEMPORARY RELEASE) ACT 2003

CONSTITUTION ART 13(6)

KINAHAN v MIN JUSTICE 2001 4 IR 454

BARRY v SENTENCE REVIEW GROUP 2001 4 IR 167

COX v IRELAND 1992 2 IR 503

HEANEY v IRELAND 1994 3 IR 593

PIGS MARKETING BOARD v DONNELLY (DUBLIN) LTD 1939 IR 413

BUCKLEY v AG 1950 IR 67

DEATON v AG & REVENUE COMMISSIONERS 1963 1 IR 170

OSMANOVIC v DPP, IRELAND & AG UNREP SUPREME 25.7.2006 2006/47/10113 2006 IESC 50

DPP v MURTAGH 1966 IR 361

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

MCCUTCHEON & COFFEY REPORT INTO THE DETERMINATION OF LIFE SENTENCES 2006 5

WEEKS v UNITED KINGDOM 1988 10 EHRR 293

WYNNE v UNITED KINGDOM 1995 19 EHRR 333

THYNNE, WILSON & GUNNELL v UNITED KINGDOM 1991 13 EHRR 666

HUSSAIN v UNITED KINGDOM 1996 22 EHRR 1

V v UNITED KINGDOM 2000 30 EHRR 121

STAFFORD v UNITED KINGDOM 2002 35 EHRR 32

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(1)EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(4)CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 2

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 4(3)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 9

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 10

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 11

KENNY v DENTAL COUNCIL UNREP GILLIGAN 27.2.2004 2004/26/5935

DPP, PEOPLE v CAHILL 1980 IR 8

O'BRIEN v GOVERNOR OF LIMERICK PRISON 1997 2 ILRM 349

DPP v FINN 2001 2 IR 25 2001 2 ILRM 211

MCHUGH v MIN JUSTICE & ORS 1997 1 IR 245

MURRAY & MURRAY v IRELAND 1991 ILRM 465

O'NEILL v GOVERNOR OF CASTLEREA PRISON 2004 1 IR 298 2004 2 ILRM 241

LYNHAM v BUTLER (NO 2) 1933 IR 74

CONSTITUTION

Separation of powers

Exercise of judicial function - Transfer of prisoners - Mandatory life sentence - Power to decide appropriateness of proposed sentence - Whether impermissible exercise of judicial function - Whether mandatory life sentence unconstitutional - Deaton v AG [1963] IR 170, Heaney v Ireland [1994] 3 IR 593 applied; Leger v France (Unrep, ECHR, 11/4/2006), Weeks v UK (1987) 10 EHRR 293, Wynne v UK (1995) 19 EHRR 333, Thynne, Wilson and Gunnell v UK (1991) 13 EHRR 666, Hussain v UK (1996) 22 EHRR 1, v & T v UK (2000) 30 EHRR 121, Stafford v UK (2002) 35 EHRR 32 distinguished - Criminal Justice Act 1990 (No 16), s 2 - European Convention on Human Rights Act 2003 (No 20,) s 5 - Constitution of Ireland 1937, Article 136 - European Convention on Human Rights, article 5 - Claim dismissed (2007/127JR - Dunne J - 6/10/2007) [2007] IEHC 358

Nascimento v Minister for Justice

CRIMINAL LAW

Prisoners

Transfer of prisoners - Ministerial decision - Discretionary power - Nature of Minister's discretion to refuse transfer - Whether Minister could consider appropriateness of sentence proposed by administering sentence - Kenny v Dental Council [2004] IEHC 29, (Unrep, Gilligan J, 27/2/2004), Murray v Ireland [1991] ILRM 465, Kinahan v Minister for Justice [2001] 4 IR 454, O'Neill v Governor of Castlerea Prison [2004] IESC 7 and 73, [2004] 1 IR 298, Lynham v Butler (No 2) [1933] IR 74 applied - Transfer of Sentenced Persons Act 1995 (No 16), s 4 - Council of Europe Convention on the Transfer of Sentenced Persons 1983 - Claim dismissed (2007/127JR - Dunne J - 6/10/2007) [2007] IEHC 358

Nascimento v Minister for Justice

1 Ms. Justice Dunne delivered the 26 day of October 2007.

2 This is an application for an order of certiorariby way of Judicial Review quashing the decision of the first respondent communicated to the applicant by letter dated the 22 ^nd September, 2006 to refuse an application pursuant to the provisions of the Transfer of Sentenced Persons Acts, 1995 - 2006, hereinafter referred to as "the Acts").

3 The applicant also seeks further reliefs namely:-

4 (a) A declaration that the decision of the first named respondent to refuse the application to transfer is ultra viresand without lawful basis;

5 (b) A declaration that the decision as to the length of the sentence required to be served for the offence is properly a judicial decision and should not taken by the first named respondent;

6 (c) A declaration of s. 2 of the Criminal Justice Act, 1990 is unconstitutional;

7 (d) A declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003 that s. 2 of the Criminal Justice Act, 1990 is incompatible with the convention.

8 Other ancillary relief is also sought.

Background

9 Grainne Dillon was employed at Jurys Hotel in Limerick. On the night of the 4 ^th/5 ^th January, 2002 she was on duty there, as the night manager. The applicant herein was also employed at the hotel as a night porter and was also on duty that night. He decided to carry out a robbery at the hotel that night. In the course of the robbery he confronted Grainne Dillon and shot her a number of times with a shot gun he had stolen earlier. I will refer subsequently in this judgment to the circumstances in which Ms. Dillon lost her life in more detail.

10 Subsequently the applicant was charged with the murder of Ms. Dillon and on the 3 ^rd March, 2003, the applicant pleaded guilty on arraignment to the murder of Ms. Dillon. The mandatory life sentence pursuant to s. 2 of the Criminal Justice Act, 1990 was then imposed on the applicant by order of the Central Criminal Court, (Mr. Justice White).

11 The applicant is a Portuguese national. His family reside in Portugal. He is close to his mother and maternal grandmother. His relationship with his father is described by his solicitor, James McGuill, in the affidavit grounding the application sworn herein on 8 ^th February, 2007 as "damaged". He is anxious to have contact with his family but they have been unable to visit him in Ireland due to their circumstances. His family would be in a position to visit him if he were serving his sentence in Portugal.

12 In the circumstances the applicant made an application for a transfer by letter dated the 18 ^th July, 2003. In the application for a transfer pursuant to the provisions of the Acts, the applicant stated that his reasons for a transfer were as follows:-

"Be able to get visit from my family.

Speak my language.

Time of sentence to serve.

No family, friends in Ireland, no visits (no ties)".

13 Various steps were taken to process the applicants request for transfer. There is no dispute as to the procedural steps that were taken prior to the decision of the first named respondent communicated by letter of 22 ^nd September, 2006. These included a review and confirmation of the sentence carried out by the Appeal Court of Evora in Portugal. As a result of that process involving the conversion of the penalty to accord with Portuguese law, it was decided that the crime of which the applicant was convicted was the equivalent of the crime of qualified homicide. In Portugal, qualified homicide carries a maximum penalty limit of 25 years in prison. Accordingly, having considered the matter the Appeal Court of Evora converted the sentence of the applicant to a sentence of 25 years in prison.

14 It is not in dispute between the parties that the provisions of Article 61 of the Criminal Code of Portugal apply to the sentence of 25 years. That means that the applicant would be eligible for conditional release after two-thirds of his sentence had been served and would have the right to be released conditionally after five-sixths of his sentence had been served. Following the expiry of the 25 year term no further conditions would apply to the terms of the applicant's release.

15 By letter dated 22 ^nd September, 2006 the first named respondent's decision was communicated to the applicant in the following terms:-

"I am directed by the Minister for Justice, Equality and Law Reform to refer to your request for transfer to Portugal under the Council of Europe Convention on the Transfer of Sentenced Persons. I am to inform you that the Portuguese Authorities provided information regarding the continued enforcement of your sentence in that jurisdiction to the effect that they cannot implement a life sentence, but were prepared to impose a maximum prison term of 25 years on you which would be counted from this January, 2002. The Minister, having carefully considered the contents of your application, the serious nature of your offence and the information received from the Portuguese Authorities regarding the continued enforcement of your sentence has decided to refuse your application for transfer on the grounds that the fixed sentence (25 years) proposed by the Portuguese Authorities as an alternative to the life sentence...