Nash v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 05 November 2004
• Neutral Citation: [2004] IEHC 356
• Court: High Court
• Docket Number: IEHC 356/[2004],[2002 No. 111 J.R.]
• Date: 05 November 2004

[2004] IEHC 356

THE HIGH COURT

IEHC 356/[2004]

[No. 111 JR/2002]

NASH v. MINISTER FOR JUSTICE

JUDICIAL REVIEW

BETWEEN

MARK NASH

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Citations:

TRANSFER OF SENTENCED PERSONS ACT 1995 S4

TRANSFER OF SENTENCED PERSONS ACT 1995 S10

TRANSFER OF SENTENCED PERSONS (AMDT) ACT 1997

EUROPEAN CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983

ASSOCIATED PROVINCIAL PICTUREHOUSE LTD V WEDNESBURY CORP 1948 1 KB 223

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

R V MINISTRY OF DEFENCE EX PARTE SMITH 1996 QB 517

MAHMOOD, R V SECRETARY OF STATE FOR HOME DEPARTMENT 2001 1 WLR 840

R V LORD SAVILLE OF NEWDIGATE EX PARTE A 2000 1 WLR 1855

OSAYANDE & LOBE V MIN JUSTICE 2003 1 IR 1

SIAC CONSTRUCTION LTD V MAYO CO COUNCIL 2002 3 IR 148

KEEGAN V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

O'REILLY V O'SULLIVAN & DUN LAOGHAIRE RATHDOWN CO COUNCIL UNREP LAFFOY 25.7.1996 1996/14/4427

DUFF V MIN AGRICULTURE 1997 2 IR 22

LAURENTIU V MIN JUSTICE 1999 4 IR 26

Synopsis:

- [2004] 3 IR 296 - [2005] 1 ILRM 503

The applicant, who was a British National sought by way of judicial review an order of certiorari quashing the decision of the respondent to refuse to transfer the applicant to Britain to serve the remainder of his sentence in a British prison pursuant to the provisions of the 1995 Act. The applicant also sought in addition to numerous declarations, an order of mandamus directing the respondent to consent to the transfer of the applicant to a British prison. The applicant submitted that the reason for the respondent's decision, which was the possibility that new evidence might come to light which would satisfy the requirements of the DPP to direct charges against the applicant in relation to two other murders was irrational and unreasonable.

Held by Kearns J. in refusing the application:

1. That the Minister in considering the application acted reasonably and within the spirit and intent of the Act. Further the Minister exercised his discretion in a manner, which was not unreasonable at that time in the sense of being irrational, or without material to sustain same. Accordingly, the decision of the Minister should not be set aside as compelling reasons were not advanced by the applicant.

2. That there were no reasons for extending the purview of the judicial review remedy by applying an 'anxious scrutiny' test in a case of this nature.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice Kearns delivered the 5th day of November, 2004.

2 The applicant is a British national who is serving two life sentences following conviction in the Central Criminal Court of two offences of murder on the 12 ^th day of October, 1998.

3 By application dated the 19 ^th February, 1999, the applicant submitted a request to the Department of Justice, Equality and Law Reform that he be transferred to the United Kingdom to serve out the remainder of his life sentences in a prison there.

4 The applicant was born on the 16 ^th April, 1973. He has a daughter by one Lucy Porter who resides in Leeds in England and with whom his daughter resides. Amongst the reasons cited by the applicant when requesting his transfer is his stated wish to be near family and friends. He stated in his application that since he was sentenced he had had no visits. He also claimed that prison was all the harder for him as he was not a national of this country.

5 The application was made by the applicant pursuant to the provisions of s. 4 of the Transfer of Sentenced Persons Act, 1995which provides:-

6 2 "(1) A person on whom a sentence has been imposed in the State who wishes to be transferred out of the State to another Convention state in order to serve the sentence or the balance of the sentence so imposed, may apply in writing to the Minister for such a transfer.

7 (3) ... The Minister may grant an application under subsection (1) of this section, if the Minister is satisfied that the following requirements have been fulfilled:

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

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

10 (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;

11 (d) that the sentenced person ... consents in writing to the transfer;

12 (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

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

14 It is accepted on behalf of the respondent that the applicant is a person who meets these criteria for the purpose of making such an application.

15 Section 10 of the Transfer of Sentenced Persons Act, 1995as amended by the Transfer of Sentenced Persons (Amendment) Act, 1997provides:-

16 2 "(1) In deciding whether or not to grant an application under section 4(1) of this Act ... the Minister shall not, without good reason, discriminate between applicants on the grounds of gender, marital or parental status, racial origin, age, political opinions or religious or other beliefs, health or sexual life, taking into account the operational requirements of the prison service and the welfare of the applicant.

17 (2) Where the Minister decides not to graant an application under section 4(1) of this Act... the Minister shall notify the applicant or the requesting state, as the case may be, of such decision and such notification shall, where practicable and where the interests of justice do not preclude so doing, include a statement specifying the grounds for such decision ...

18 10B - Pending a decision on an application under section 4(1) of this Act ... the Minister shall keep the applicant ... informed at regular intervals on the progress of the application".

19 The Minister gave a preliminary consent to the making of an application thereby setting in train a series of inquiries to be made to various agencies who had, or might have an interest in the application and whose representations would be put before the Minister before any final decision could be reached. The respondent, in exercise of his statutory duties, contacted agencies such as the gardaí, the prison authorities where the applicant was detained, and the Probation and Welfare Service. The Garda Síochána reported to the Minister on the 30 ^th March, 2001, advising that in their belief there was a possibility that new evidence might come to light which would satisfy the requirements of the Director of Public Prosecutions to direct charges against the applicant herein in relation to two other murders, namely, the double murders of Mary Callanan and Sylvia Shields, which had been referred to in the media as the Grangegorman murders. These murders occurred on the 7 ^th March, 1997.

20 In the light of the said report and representations of the gardaí the Minister exercised his discretion under the Act of 1995 (as amended) to refuse the said application for transfer. This decision was made on the 3 ^rd April, 2001, and was communicated to the applicant herein by way of letter sent to Arbour Hill Hospital on the 9 ^th April, 2001. At that time, the respondent was of the view that the sensitive nature of the investigation precluded the Minister from informing the applicant of his reasons for such refusal. In his affidavits sworn herein on the 30 ^th April, 2002, Mr. Anthony Flynn, Assistant Principal Officer attached to the Prisons Policy Section of the Department of Justice, deposes that media speculation, together with reports published in various newspapers at the time, would have had the effect that the applicant herein was alive to the fact that he remained a suspect for the Grangegorman murders.

21 Thereafter judicial review proceedings were commenced by the applicant seeking the reasons for the Minister's refusal. These were eventually furnished to the applicant by letter dated the 10 ^th December, 2001, which states:-

"I am instructed that, following consultation with the Gardaí, the Minister is satisfied that he is now no longer precluded from informing their client of the reasons for his refusal to consent to your client's application for a transfer. I am further instructed to advise that the said application was refused on the basis that your client was and remains a suspect in the murders of Mary Callanan and Sylvia Shields. The Minister is of the view that whilst the Garda investigation is ongoing it would not be appropriate to consent to the transfer. The Minister is also of the view that, given the practical difficulties which may arise as a result of a suspect being outside the jurisdiction and the practical difficulties which may arise should directions be given at a future date that charges be preferred against your client, it would be contrary to the interests of justice to consent to the transfer of your client to another jurisdiction at this time."

22 At para. 14 of his affidavit, Mr. Flynn deposes:-

"I further say and am advised the practical and legal difficulties which it is envisaged would arise should the applicant be transferred would include, not least, the difficulty in re-interviewing the applicant in the future but particularly the inability to request his extradition from the United Kingdom should charges be preferred. I say and believe and am advised that the applicant could not be returned to this jurisdiction unless with his consent, to face further charges until his sentence had been completed. I say that the applicant is serving a life sentence which in effect will not end even if he should be released in the future on some form of parole. I am further advised...