Nascimento v Minister for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 26 October 2007
• Docket Number: [2007 No. 127 JR]
• Date: 26 October 2007

[2007] IEHC 358,

High Court

[2007 No. 127 JR]

Nascimento v. Minister for Justice

Paulo Nascimento

Applicant

and

The Minister for Justice, Equality and Law Reform, Ireland and The Attorney General

Respondents

Cases mentioned in this report:-

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223; [1947] 2 All E.R. 680; [1947] W.N. 1290.

Barry v. Sentence Review Group [2001] 4 I.R. 167.

Buckley and others (Sinn Féin) v. Attorney General and another[1950] I.R. 67.

Chaulk v. R. [1990] 3 S.C.R. 1303.

Cox v. Ireland [1992] 2 I.R. 503.

Deaton v. The Attorney General and the Revenue Commissioners[1963] I.R. 170; (1962) 98 I.L.T.R. 99.

Director of Public Prosecutions v. Tiernan [1989] I.L.R.M. 149.

Heaney v. Ireland [1994] 3 I.R. 593; [1994] 2 I.L.R.M. 420. (H.C.).

Hussain v. United Kingdom (App. No. 21928/93) (1996) 22 E.H.R.R. 1.

Kenny v. Dental Council [2004] IEHC 29, (Unreported, High Court, Gilligan J., 27th February, 2004).

Kinahan v. Minister for Justice [2001] 4 I.R. 454.

Laurentiu v. Minister for Justice [1999] 4 I.R. 26; [2000] 1 I.L.R.M. 1.

Leger v. France (App. No. 19324/02) (Unreported, European Court of Human Rights, 11th April, 2006).

Lynham v. Butler (No. 2) [1933] I.R. 74; (1932) 67 I.L.T.R. 75; [1932] L.J. Ir. 172.

McHugh v. Minister for Justice [1997] 1 I.R. 245.

Meadows v. Minister for Justice (Unreported, High Court, Gilligan J., 19th November, 2003).

Mishra v. Minister for Justice [1996] 1 I.R. 189.

Murray v. Ireland [1991] I.L.R.M. 465.

A.O. and D.L. v. Minister for Justice [2003] 1 I.R. 1.

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237.

O'Brien v. Governor of Limerick Prison [1997] 2 I.L.R.M. 349.

O'Neill v. Governor of Castlerea Prison [2004] IESC 7 and 73, [2004] 1 I.R. 298.

O'Neill v. Minister for Agriculture [1998] 1 I.R. 539; [1997] 2 I.L.R.M. 435.

Osmanovic v. Director of Public Prosecutions [2006] IESC 50, [2006] 3 I.R. 504.

The People (Attorney General) v. Murtagh [1966] I.R. 361; (1965) 102 I.L.T.R. 146.

The People v. Cahill [1980] I.R. 8.

The People (Director of Public Prosecutions) v. Finn[2001] 2 I.R. 25; [2001] 2 I.L.R.M. 211.

Pigs Marketing Board v. Donnelly (Dublin) Ltd.[1939] I.R. 413.

R. (Mahmood) v. Secretary of State for the Home Department [2001] 1 W.L.R. 840.

SIAC Construction Ltd. v. Mayo County Council [2002] 3 I.R. 148; [2002] 2 I.LR.M. 401.

Stafford v.United Kingdom (App. No. 46295/99) (2002) 35 E.H.R.R. 32.

The State (Keegan) v. Stardust Compensation Tribunal[1986] I.R. 642; [1987] I.L.R.M. 202.

T. & V. v. United Kingdom (App. No. 24724/94) (2000) 30 E.H.R.R. 121.

Thynne, Wilson and Gunnell v. United Kingdom (App. Nos. 11787/85; 11978/86; 12009/86) (1991) 13 E.H.R.R. 666.

Times Newspapers Ltd. v. United Kingdom (1979) 2 E.H.R.R. 245.

Weeks v. United Kingdom (App. No. 9787/82) (1987) 10 E.H.R.R. 293.

Wynne v. United Kingdom (App. No. 15484/89) (1995) 19 E.H.R.R. 333.

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 State - Transfer of Sentenced Persons Act 1995 (No. 16), s. 4 - Council of Europe Convention on the Transfer of Sentenced Persons 1983.

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 - Criminal Justice Act 1990 (No. 16), s. 2 - European Convention on Human Rights Act 2003 (No. 20), s. 5 - Constitution of Ireland 1937, Article 13(6) - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 5.

Judicial review - Administrative decision - Standard of review -Transfer of prisoners - Test to be applied - Whether anxious scrutiny test where issues of fundamental human rights - Whether fundamental human rights at issue - Whether discretion exercised reasonably.

Judicial review

The facts have been summarised in the headnote and are more fully set out in the judgment of Dunne J., infra.

On the 12th February, 2007, the applicant was granted leave by the High Court (Peart J.) to apply by way of judicial review, inter alia, for an order of certiorari, quashing a decision of the first respondent refusing his application for a transfer to Portugal pursuant to the Transfer of Sentenced Persons Acts 1995 to 2006.

The matter came on for hearing before the High Court (Dunne J.) on the 12th, 13th and 14th June, 2007.

Section 4(3) of the Transfer of Sentenced Persons Act 1995 provides as follows:-

"Subject to subsection (4) of this section, the Minister may grant an application under subsection (1) of this section, if the Minister is satisfied that the following requirements have been fulfilled:

(a) that the sentenced person concerned is, for the purposes of the Convention, regarded by the administering state as a national of that state;

(b) that the order under which the sentence concerned was imposed on the sentenced person is final;

(c) that, at the time of the receipt of the application, the sentenced person had at least 6 months of the sentence concerned to serve or the sentence was of indeterminate length;

(d) that the sentenced person or, in a case where the Minister or the administering state considers it necessary because of the age or physical or mental condition of the sentenced person, the legal representative of the sentenced person or any other person considered by the Minister or the administering state to be an appropriate person for the purpose, consents in writing to the transfer;

(e) that the acts or omissions constituting the offence concerned would, if done or made in the administering state, constitute an offence under the law of that state; and

(f) that the administering state agrees to the transfer."

The applicant, a Portuguese national, pleaded guilty to murder and a mandatory life sentence was imposed on him pursuant to s. 2 of the Criminal Justice Act 1990. He applied to the first respondent for a transfer to Portugal, pursuant to the provisions of the Transfer of Sentenced Persons Acts 1995 to 2006. There was no equivalent of a life sentence in Portugal and the Portuguese authorities, in converting the sentence, proposed a sentence of 25 years imprisonment, the maximum sentence permissible in that country. Following the expiry of this sentence, the applicant would be subject to no further conditions in respect of his release. The first respondent refused the applicant's transfer request on the grounds that the 25 year sentence proposed, as an alternative to the life sentence imposed in this jurisdiction, was not appropriate given the gravity of the crime.

The applicant sought, inter alia, an order ofcertiorari quashing the first respondent's decision refusing his transfer request and a declaration that the refusal was ultra vires. The applicant argued that once the conditions set out in s. 4(3) of the Act of 1995 were met, the first respondent was obliged to effect a transfer and further, that the effect of the first respondent's decision was that unless there was equivalence of sentence, a transfer could never be ordered, which, in the absence of any provision in the Acts indicating that the length of sentence was relevant to the exercise of the first respondent's discretion, wasultra vires his powers under s. 4. The applicant also sought declarations that the decision as to the length of the sentence required to be served for the offence was properly a judicial decision, that s. 2 of the Criminal Justice Act 1990 was unconstitutional, in that it contravened the doctrine of proportionality and was incompatible with s. 5 of the European Convention on Human Rights Act 2003.

The applicant submitted that the first respondent's decision was unreasonable, given that the sentence imposed was the maximum under Portuguese law and was longer than that which most prisoners convicted of murder in this jurisdiction would serve and in any event a more rigorous test of anxious scrutiny should apply because of the human rights issues involved, including the applicant's right of access to his family.

Held by the High Court (Dunne J.), in refusing the reliefs sought, 1, that the Convention on the Transfer of Sentenced Persons did not confer an automatic right of transfer on a sentenced person. The use of the word "may" in s. 4 of the Act of 1995 conferred a discretionary power on the first respondent, which was not limited to assessing the formulaic application of s. 4(3) of the Act of 1995.

Kenny v. Dental Council [2004] IEHC 29, (Unreported, High Court, Gilligan J., 27th February, 2004) followed.

2. That the first respondent's decision was not ultra vires. The first respondent had an obligation where the administering state did not have an equivalent sentence, to consider the actual time likely to be served in prison by the applicant in this jurisdiction and whether the sentence as converted in the administering state was appropriate, having regard to the facts and circumstances of the individual case. The average time spent in prison by those convicted of murder was but one factor to be taken into consideration by the first respondent in the exercise of his discretion.

3. That the first respondent's decision was not unreasonable or irrational. It was not based on a lack of equivalence between the sentence imposed in this jurisdiction compared with the proposed sentence in the administering state, but was based on the gravity of the particular crime in this case.

4. That the power to release a prisoner through a system of temporary or early release was quintessentially an executive function that did not involve the determination of sentence. The exercise of this power was subject to...