Vincent Sweeney v Govenor of Loughlan House Open Centre and Others

• Jurisdiction: Ireland
• Judge: Murray J.,Mr. Justice Clarke
• Judgment Date: 03 July 2014
• Neutral Citation: [2014] IESC 42
• Court: Supreme Court
• Docket Number: [S.C. No. 105 of 2014]
• Date: 03 July 2014

Sweeney v Governor of Loughlan House Open Centre & Ors

Between/

Vincent Sweeney

Appellant/Applicant

and

Govenor of Loughlan House Open Centre, The Minister for Justice & Law Reform, Ireland and The Attorney General

Respondents

Vincent Sweeney

and

The Governor of Loughan House Open Centre, The Minister for Justice and Law Reform, Ireland and the Attorney General

[2014] IESC 42

Denham C.J.

Murray J.

Hardiman J.

Clarke J.

MacMenamin, J.

[Appeal No: 105/14]

[Appeal No: 105/2014]

THE SUPREME COURT

Transfer of Prisoners – Sentencing – Release from Prison – Legal Nature of Sentence – Administration and Enforcement of Sentence – Transfer of Sentenced Persons Act 1995 – Convention on the Transfer of Sentenced Persons.

Facts: The appellant had been convicted and sentenced in the UK to 16 years imprisonment but requested a transfer to serve the remainder of his sentence in Ireland. This was permitted under the Transfer of Sentenced Persons Act 1995 which implemented in Ireland the Convention on the Transfer of Sentenced Persons. The appellant was transferred to Ireland and applied to the High Court for release on the grounds that under the UK Criminal Justice Act 2003 he was entitled to serve half of his sentence in custody and the remaining half in the community. However, his application was dismissed by the High Court judge who favoured the Minister"s argument that in Ireland the appellent would only be entitled to be released after having served 12 years of his sentence. Consequently the appellant appealed to the Supreme Court.

Held by Clarke J. (nem diss), that whilst the Convention itself is not part of Irish law, courts should interpret Irish legislation in a manner which complies with the country"s obligations under any international treaties or conventions it has signed up to.

Justice Clarke then went on to highlight the difference between the actual legal nature of a sentence and the administration and enforcement of that sentence. He stipulated that the actual sentence and its legal nature is to be dealt with by the sentencing country whilst any issues concerning administration and enforcement are for the host country to determine.

Clarke J. stated that if the appellant had been sentenced in the UK to 8years in prison with the second 8years to be served in the community, under licence and subject to recall, this would be a matter for the sentencing country to deal with as it concerned the actual legal nature of the sentence. If, however, the appellant"s sentence was construed as being a sentence of 16years with the possibility of remission, this would be a matter to determined by the host country as it concerned the administration and enforcement of the sentence.

He concluded that the sentence was in fact one which required the appellant to serve 8years in prison with the further 8years to be served in the community on licence subject to recall. As such the High Court"s warrant issued when the appellant was transferred to Ireland was quashed as the period of imprisonment stipulated on that warrant was incorrect.

In addition, the Court ordered that the appellant be immediately released as by the time the case was heard by the court, the appellant had already served the first 8years of his sentence.

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(1)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(4)

TRANSFER OF SENTENCED PERSONS ACT 1995 S1(1)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 10

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 11

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 1

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 3

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 9(1)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 9(3)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 10(1)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 10(2)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(5)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 6

BOURKE v AG 1972 IR 36 107 ILTR 33

CRILLY v TJ FARRINGTON LTD 2001 3 IR 267 2002 1 ILRM 161 2001 IESC 60

TRANSFER OF SENTENCED PERSONS ACT 1995 S6

R (SMITH) v PAROLE BOARD 2005 1 WLR 350 2005 1 AER 755 2005 HRLR 8

R v GOVERNOR OF BROCKHILL PRISON EX PARTE EVANS (NO 2) 2001 2 AC 19 2000 3 WLR 843 2000 4 AER 15

CRIMINAL JUSTICE ACT 2003 S244 (UK)

TRANSFER OF SENTENCED PERSONS ACT 1995 S1

SWEENEY v GOVERNOR OF LOUGHLAN HOUSE OPEN CENTRE & ORS UNREP KEANE 7.2.2014 2014 IEHC 150

TRANSFER OF SENTENCED PERSONS ACT 1995 S7

TRANSFER OF SENTENCED PERSONS (AMENDMENT) ACT 1997 S1

TRANSFER OF SENTENCED PERSONS ACT 1995 S5

TRANSFER OF SENTENCED PERSONS ACT 1995 S4

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 2

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 9

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 9(1)(A)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 21.3.1983 ART 9(1)(B)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(6)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002

CONSTITUTION ART 15.2.1

CONSTITUTION ART 29.6

O LAIGHLEIS, IN RE 1960 IR 93

I (H) v G (M) 2000 1 IR 110 2002 FAM LJ 11 2000/11/4017

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(4)

SZABO v SWEDEN UNREP ECHR 27.6.2006 (APPLICATION NO 28578/03)

VEERMAE v FINLAND UNREP ECHR 15.3.2005 (APPLICATION NO 38704/03)

CRIMINAL JUSTICE ACT 2003 S254 (UK)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

PRISON RULES 2007 SI 252/2007 r.59

1 JUDGMENT of Murray J. delivered the 3rd day of July, 2014.

2 Judgment of Mr. Justice Clarke delivered the 3rd July, 2014.

3 Judgment delivered by Murray J & Clarke J

4 1. The appellant in this case was convicted of serious drug offences in the United Kingdom on the 7 ^th December, 2006. He was sentenced to what has been described as 16 years imprisonment by a court in England with the consequence, under English law, that one half only of the 16 years would be served in custody, and one half served on release on licence in the community. In December, 2008 he consented to his transfer to this country in accordance with the Transfer of Sentenced Persons Act, 1995, as amended, and had since then continued to serve the remainder of his prison sentence or period of "deprivation of liberty" in this country. The issue in this case turns on what date must be treated as the expiry date of his custodial sentence within the meaning of the Act of 1995, and the Convention on the Transfer of Sentenced Persons.

5 2. While serving his sentence of imprisonment in an English prison the appellant sought to serve the balance of his sentence in Ireland, in accordance with the provisions of the Council of Europe Convention on the Transfer of Sentenced Persons (hereinafter referred to as the "Convention"). The appellant was transferred from the United Kingdom to Ireland on the 16 ^th December, 2008 for the purpose of serving the balance of the English court's sentence imposed on him. The authority to detain him in the country for that purpose stems from a warrant to that effect issued by the High Court on the application of the Minister. The warrant was issued in accordance with s.7(1) of the Transfer of Sentenced Persons Acts, 1995, as amended by an Act of the same title in 1997 (hereinafter "the Act"). Pursuant to s.7(4) of the Act that warrant has the same force and effect as a warrant imposing a sentence following conviction by a court in Ireland insofar as it authorises the continued enforcement in Ireland of the sentence imposed in the foreign State "with due regard to any remission of sentence accrued in the sentencing State". (Section 7(4) of the Act). This refers to remission already accrued prior to transfer and has no bearing on any question of remission which might accrue subsequent to the prisoner's transfer.

6 3. The appellant seeks, by way of judicial review, a declaration that the warrant issued by the High Court on the 22 ^nd October, 2008 was ultra vires the provisions of the Act, and the principles contained in the Transfer Convention.

Submissions of the Appellant

7 4. In the light of the point of law on which this appeal must be determined, namely, what constitutes the sentence, or period of "deprivation of liberty", in this case within the meaning of s.1(1) of the Act, it is sufficient to summarise the appellant's arguments succinctly as follows: It was accepted that the enforcement and administration here of a sentence imposed in the sentencing state is governed exclusively by Irish law, and a prisoner who is transferred under the Convention and in accordance with the terms of the Act must accept that. In this case, the sentence imposed by the English court, although referred to as 16 years imprisonment, must be understood as comprising of a sentence in two halves, namely, 8 years, in custody and half the sentence, the other 8 years, at liberty in the community under strict licence. His entitlement to release at the end of the first period of 8 years was not dependent on the discretion of any state authority. He was entitled to release at that point as a matter of law, and to remain at liberty in the community for the remainder of the sentence period once he complied with the conditions of his release. Since sentence, within the meaning of the Act, can only refer to a period of deprivation of liberty, the only imprisonment period which it fell to the Irish authorities to "enforce" or "administer" was the period of 8 years. Once that period of imprisonment had been completed his sentence, within the meaning of the Act, was completed and he was entitled to be released.

8 5. The appellant relied on evidence as to English law concerning the duration and legal nature of the...