Vincent Sweeney v Governor of Loughlan House Open Centre and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Keane
• Judgment Date: 07 February 2014
• Neutral Citation: [2014] IEHC 150
• Court: High Court
• Date: 07 February 2014

[2014] IEHC 150

THE HIGH COURT

[No. 270JR/2012]

Sweeney v Governor of Loughlan House Open Centre & Ors

JUDICIAL REVIEW

No Redaction Needed

BETWEEN

VINCENT SWEENEY

Applicant

AND

THE GOVERNOR OF LOUGHLAN HOUSE OPEN CENTRE, THE MINISTER FOR JUSTICE AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

Respondent

CONSTITUTION ART 34.1

CONSTITUTION ART 38.1

CONSTITUTION ART 40.4.1

MISUSE OF DRUGS ACT 1977 S5

MISUSE OF DRUGS ACT 1977 S15(A)

MISUSE OF DRUGS ACT 1977 S21(2)

MISUSE OF DRUGS ACT 1977 S27(10)

CUSTOMS & EXCISE MANAGEMENT ACT 1979 S170(2) (UK)

CRIMINAL JUSTICE ACT 2003 S244 (UK)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(4)

SENTENCING GUIDELINES COUNCIL NEW SENTENCES CRIMINAL JUSTICE ACT 2003 GUIDELINE

CRIMINAL JUSTICE ACT 1991 (UK)

CAFFREY v GOVERNOR OF PORTLAOISE PRISON UNREP CHARLETON 20.5.2010 2010/7/1520 2010 IEHC 213

TRANSFER OF SENTENCED PERSONS ACT 1995 S7

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(5)(A)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(5)(B)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(6)(A)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(6)(B)

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(10)

TRANSFER OF SENTENCED PERSONS ACT 1995 S1

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 1

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 9(3)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 9(1)(B)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 9(1)(A)

CAFFREY v GOVERNOR OF PORTLAOISE PRISON 2012 1 IR 637 2012 2 ILRM 88 2012/5/1388 2012 IESC 4

TRANSFER OF SENTENCED PERSONS ACT 1995 S7(5)

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

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 5(1)(A)

DROZD & JANOUSEK v FRANCE & SPAIN (A/240) 1992 14 EHRR 745 (APPLICATION NO 12747/87)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 3

TRANSFER OF SENTENCED PERSONS ACT 1995 S6(5)

TRANSFER OF SENTENCED PERSONS ACT 1995 S6(6)

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 7(1)

Imprisonment - Transfer of Sentenced Persons Acts - Committal Warrant – Jurisdiction – Transfer Request – Constitution of Ireland – Transfer Convention – Relief – Consent – Prison Law

Facts: The applicant was sentenced in the United Kingdom to sixteen years imprisonment with 252 days on remand taken into consideration for drugs offences. The applicant was informed that he would serve 8 years of that sentence in custody and 8 years on licence. This was confirmed in his Release Dates Notification Slip, which stated that his “sentence expiry date” was the 29 ^th March 2022 and that his “conditional release date” was the 29 ^th March 2014”. Due to family ties the applicant requested a transfer to an Irish Prison, which was subsequently granted subject to a number of conditions. Firstly, the applicant was informed that his release date could be extended subject to the laws of the receiving State; secondly, he was informed that he would be expected to serve his sentence in accordance with the “continued enforcement” procedure under the Convention on the Transfer of Sentenced Persons; and thirdly, he was informed that there would be no guarantee of temporary release. Following his transfer and acceptance of these terms, the applicant was informed that his new release date in Ireland with remission was the 16 ^th November 2016. In light of the foregoing, the applicant argued that the legal nature of his sentence, as imposed by the English Court was one of 8 years imprisonment and 8 years on licence. He further contended that, the original sentence was ultra vires section 7(4) of the Transfer of Sentenced Persons Acts, 1995 and 1997, in that it purported to go beyond the continued enforcement by the State of the sentence concerned imposed by the sentencing state concerned in its legal nature, which that section permits. On that basis, the applicant further argued that, in considering the issue of a warrant to authorise the continued enforcement in the State of the sentence imposed on him in England, the High Court should have adapted that sentence to one of 16 years imprisonment with 8 years of that sentence suspended on conditions designed to mirror the standard licence conditions and/or the conditions prescribed by the Secretary of State that are imposed on a prisoner in England who is released after serving half of a determinate sentence of more than 12 months. The applicant contended that he should have been legally represented for the purpose of the relevant warrant application on the basis that the relevant proceedings should have been considered as directly analogous to a criminal sentencing. Finally, the applicant contended that the continued enforcement of his sentence under the warrant now at issue is a disproportionate interference with the his right to liberty and the security of the person under the European Convention on Human Rights in view of the disparity between his conditional release date in the United Kingdom and his unconditional release date (with remission) in Ireland.

Held by Justice Keane, having examined the relevant laws and jurisdictional issues, that the additional period of detention that the applicant would serve in Ireland was consistent with the laws of that country, as accepted by the applicant in his transfer consent form. Secondly, Justice Keane, determined that the period of detention was not so disproportionate as to entail a breach of the European Convention on Human Rights. Finally, on the issue of consent, Justice Keane was satisfied that all appropriate steps had been taken to ensure that the applicant when he consented to his transfer was aware that his conditional release date in the United Kingdom would not apply to his imprisonment in Ireland. Thus, the court reasoned that on the reasons set out above, it was satisfied that the continued detention of the applicant was in accordance with the law and would remain so after the 29th March 2014. The relief sought was, therefore, refused.

1 JUDGMENT of Mr. Justice Keane delivered on the 7th day of February 2014

Introduction

2 1. The net question presented in these proceedings is whether the continued imprisonment of the applicant in this jurisdiction after the 29 ^th March 2014 is ultra vires the Transfer of Sentenced Persons Acts, 1995 and 1997 ("the Acts"), or contrary to the principles contained in the 1983 Council of Europe Convention on the Transfer of Sentenced Persons ("the Transfer Convention"), to which instrument the Acts are intended to give domestic effect, or in breach of the requirements of Articles 34.1, 38. 1 or 40.4.1 of the Constitution of Ireland.

Background

3 2. The applicant is detained in Loughan House Open Centre, Blacklion, County Cavan, on foot of a High Court committal warrant issued on the 22 ^nd October 2008, pursuant to section 7 of the Acts. That warrant recites on its face that the applicant is to serve a sentence imposed in the United Kingdom of "16 years imprisonment with 252 days on remand taken into consideration", which sentence commenced on the 7 ^th December 2006.

4 3. The committal warrant further recites that the crimes for which the applicant was sentenced would, if committed within the State, constitute offences within the State, to wit: two counts of unlawful importation of a controlled drug contrary to the Misuse of Drugs Regulations, 1988 made under section 5 of the Misuse of Drugs Act 1977 and contrary to section 15A, section 21(2) and section 27(10) of the Misuse of Drugs Act 1977, as amended.

5 4. The circumstances of the applicant's prosecution, conviction and sentence in the United Kingdom are not in dispute for the purpose of the present proceedings. He was arrested at the Eastern Docks in Dover, Kent, south- east England on the 28 ^th March 2006 in connection with the attempted importation into the U.K. of 25kg of heroin and 600kgs of cannabis with an aggregate street value of £2.5 million, which drugs were found at that location concealed in a false compartment within a horsebox. When interviewed, the applicant afforded no co-operation or assistance and made no admissions. He was charged with two counts of the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to section 170(2) of the UK Customs and Excise Management Act 1979. Having entered a plea of not guilty when arraigned on the 3 ^rd July 2006, the applicant was tried at Canterbury Crown Court between the 27 ^th November and 7 ^th December 2006, and was convicted. Having no known previous convictions, on the 7 ^th December 2006 the applicant was sentenced to 16 years imprisonment with the 252 days that he had already spent in custody on remand to be taken into account in calculating that term.

6 5. The applicant avers that, in passing sentence, Her Honour Judge Adele Williams informed him that he would serve 8 years of the 16-year sentence in custody and 8 years on licence. From that statement, the applicant understood that his release date was in March 2014. The applicant avers that he further understood, and was advised, that the sentence passed by the judge contained two distinct elements: a period of time spent in custody followed by a period of time spent in the community under the supervision of the probation services. While subsequently a prisoner in Her Majesty's Prison Lowdham Grange, the applicant received a "Release Dates Notification Slip" recording, among other matters, that the his "sentence expiry date" was the 29 ^th March 2022 and that his "conditional release date" was the 29 ^th March 2014.

The transfer request

7 6. The applicant avers that his partner, son and two grandchildren live in County Sligo and that his elderly mother and four siblings live in County Fermanagh. While it appears that the applicant made enquiries concerning a possible transfer to serve his...