Supreme Court dismisses appeal upholding lawfulness of life sentence detention under Irish law despite English tariff history.

THE SUPREME COURT

[Appeal No: 267/2010]

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Macken J.

Between/

Jonathon Caffrey

Applicant/Appellant

And

The Governor of Portlaoise Prison

Respondent/Respondent

Judgment delivered on the 1st day of February 2012, by Denham C.J.

1. This is an appeal by Jonathon Caffrey, the applicant/appellant, referred to as “the appellant”, from the judgment and order of the

High Court (Charleton J.) delivered on the 20th May, 2010, which refused the appellant’s application under Article 40.4 of the

Constitution of Ireland. The Governor of Portlaoise Prison is the respondent, and is referred to as “the respondent”.

2. The respondent has served a notice to vary the judgment and order of the High Court delivered on the 20th May, 2010.

3. The appellant brought his application in the High Court to seek an enquiry into the lawfulness of his detention, pursuant to Article

40.4 of the Constitution of Ireland, 1937. The application was grounded on the affidavit of Barry Powderly, Solicitor, deposed on the

25th March, 2010, to which there were a number of exhibits.

4. On the 26th March, 2010, the High Court (Hedigan J.) ordered, in accordance with Article 40.4.2 of the Constitution, that the

respondent produce the appellant before the Court at 11 o’clock on the 31st March, 2010, and certify in writing the grounds of his

detention.

5. A replying affidavit was filed by Brendan Eiffe, an Assistant Principal Officer of the Prisons Policy Division, Department of Justice,

Equality and Law Reform, on the 31st March, 2010. To this affidavit there were a number of exhibits also.

Certificate

6. Pursuant to the order of the High Court made on the 26th March, 2010, the Assistant Governor of Portlaoise Prison certified in

writing the grounds for the detention of the appellant. He stated:-

“I, Christopher McCormack, Assistant Governor of Portlaoise Prison, hereby certify as follows: I hold the [appellant] in

custody in Portlaoise Prison pursuant to warrant pursuant to section 7 of the Transfer of Sentence Persons Act, 1995,

dated the 31st August, 2004. I refer to the said warrant when produced and to a photostat copy thereof upon which is

pinned together and marked “A” I have endorsed my name before the signing hereof.”

The document was signed by Christopher McCormack and dated the 31st March, 2010.

Warrant

7. The warrant, to which there was reference in the certified grounds for the detention of the appellant, and upon which the

appellant is held in custody, recites as follows:-

“THE HIGH COURT

Record Number

WARRANT PURSUANT TO SECTION 7 OF THE TRANSFER OF SENTENCED PERSONS ACT, 1995

APPLICANT: THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

SENTENCED PERSON: JONATHON CAFFREY

SENTENCING STATE: UNITED KINGDOM OF GREAT BRITAIN

AND NORTHERN IRELAND

CRIME: MURDER

SENTENCE IMPOSED

BY SENTENCING

STATE: LIFE IMPRISONMENT

DATE OF

COMMENCEMENT OF

SENTENCE: 15th December 1999

Whereas upon the hearing of an application at the High Court held at the Four Courts, Dublin on the 12th day of July 2004 for the

issue of a Warrant authorising the bringing of the said sentenced person into the State from a place outside the State, and the taking

of the said person and custody to and the persons detention in the State, the Court was satisfied that:-

(a) The said sentenced person is regarded as a national of the State within the meaning of Section 6(3)(a) of the

Transfer of Sentenced Persons Acts, 1995 to 1997;

(b) The sentence imposed on the said sentenced person by the said sentencing State is final;

(c) At the time of the request for a transfer into the State, the said sentenced person had at least six months of

the sentence imposed by the said sentencing state left to serve;

(d) The said sentenced person consents in writing to a transfer into the State;

(e) The acts or omissions constituting the said offence would, if done or made in or on the territory of the State

constitute an offence under the law of the State, to wit murder contrary to common law and Section 4 of the

Criminal Justice Act, 1964 and Section 2 of the Criminal Justice Act, 1990 which said offence in this jurisdiction

carries a mandatory penalty of life imprisonment upon conviction.

(f) The Minister for Justice, Equality and Law Reform consents to the transfer concerned.

An Order was made authorising the bringing of the said sentenced person into the State and the taking of the said person in custody

to, and his detention in custody at Mountjoy Prison and to serve his sentence there.

THIS IS TO AUTHORISE YOU to whom this Warrant is addressed to execute the said Order against the said person as follows:-

To bring the said sentenced person in custody into the State and to lodge the said person in Mountjoy Prison to serve his sentence

there.

And for this the present Warrant shall be sufficient authority to all whom it may concern.

Signed: [Signature]

Registrar of the High Court

Dated the 31st day of August 2004

To: Governor of Mountjoy Prison.”

The custody of the appellant, the sentence, the imprisonment in Ireland, is grounded on this warrant.

8. A supplementary affidavit was filed by Barry Powderly, deposed on the 14th April, 2010, on behalf of the appellant. Attached to

this affidavit were a number of exhibits, including a letter dated the 3rd July, 2003, written by Anne O’Gorman, Principal officer,

Prisons Policy Division of the Department of Justice, Equality and Law Reform, to the appellant. It stated:-

“Dear Mr. Caffrey,

I am directed by the Minister for Justice, Equality and Law Reform to inform you that the Minister has consented to your

application to transfer here under the Transfer of Sentenced Persons Act, 1995 and 1997. The enclosed documentation

sets out for your information the legal consequences for you of a transfer to a prison in Ireland. In particular you are

asked to note that:-

(1) If you consent to a transfer to Ireland, you should expect, save for exceptional circumstances

arising, to serve at a minimum, the tariff imposed in the UK (excluding time deemed to be served in the

U.K.).

(2) You will be expected to serve the balance of your sentence in accordance with the “continued

enforcement” procedure under the Convention on the Transfer of Sentenced Persons.

(3) Information in respect of remission/temporary release is attached. There can be no guarantee that

the Minister would see fit to authorise any form of temporary release in your case.

(4) While every attempt will be made to take account of your personal circumstances in the event of

your transfer to this jurisdiction, there can be no guarantee of your being accommodated in any

particular prison or institution.

A copy of the Transfer of Sentenced Persons Act, 1995 and 1997 and an explanatory leaflet on its operation are also

enclosed for your information.

Yours sincerely,”

9. By letter dated the 26th March, 2010, from the Department of Justice, Equality and Law Reform, the appellant’s solicitors had been

informed inter alia,

“The acts or omissions constituting the offence concerned, namely murder contrary to common law would if done or made

in or on the territory of the State constitute an offence under the law of the State, to wit murder contrary to common

law which carries a mandatory penalty of life imprisonment upon conviction. Your client’s sentence is compatible with Irish

law and therefore there was no need for the sentence to be adapted by the Irish Courts. I am to inform you that

remission is not applicable for life sentenced prisoners both here or in the United Kingdom.”

10. The appellant filed an affidavit which he deposed on the 16th April, 2010. Amongst other points he raised the matter that since he

had then been in prison for more than 12 years, his tariff expired on the 23rd March, 2010, which meant that the punishment and

deterrence element of his sentence had expired, and since preventative detention is not permitted under Irish law, there was no basis

for his detention.

11. A supplemental affidavit by Brendan Eiffe was deposed on 23rd April, 2010, and filed on behalf of the respondent, where matters

of fact were engaged.

12. There is also an affidavit of David Perry, Q.C., before the Court, explaining the law in England and Wales governing sentences of

imprisonment for life following conviction for murder. Foreign law is, of course, a matter of fact for a court in this jurisdiction.

The High Court

13. The learned High Court judge delivered his judgment on the 20th May, 2010. The facts, as summarised by the High Court, include

the following: The appellant is serving life imprisonment, a sentence that was imposed in England in December, 1999, for the murder in

that jurisdiction of Andrew Cook in November, 1994. As in Ireland, a conviction for murder in England carries a mandatory sentence of

imprisonment for life. However, in England a trial judge, unlike in Ireland, may make a recommendation as to the minimum term to be

served. In the case of the appellant there was a recommendation of twelve years. The appellant’s sentence was back dated to begin

in March, 1998, when he was first taken into custody. Thus, the twelve years minimum recommended by the judge in England expired

in March, 2010. The appellant claimed that the nature of the sentence that he was given in England comprised a punitive element of

twelve years followed by preventative detention for the rest of his life. In May 2005 the appellant was transferred from prison in

England to Ireland to serve the balance of his sentence, nearer to his family. It was argued on his behalf that as a preventative

detention is a concept unknown in Irish sentencing law, and as the appellant has served the punitive element, he should be released.

14. The offence took place on the 6th November, 1994. The appellant, Brett Evans and Justin Reiss went to the home of Andrew

Cook, in England; a row broke out over an allegation of sexual infidelity with a girl who was not present. The appellant beat Andrew

Cook so badly that he was rendered senseless and unconscious in his living room. Brett Evans then got a knife from the kitchen and,

sitting astride the victim, stabbed him a number of times. He left the knife stuck into his neck. Most of the evidence came from Justin

Reiss who, it was alleged, was not involved in the attack. The body was not discovered for a number of days.

15. The appellant was convicted of murder. The Court of Appeal in England, in an appeal against the conviction, in a judgment of

22nd March, 2001, held the conviction to be safe and satisfactory: R. v. Evans and Caffrey [2001] EWCA Crim 730.

16. The appellant was sentenced to life imprisonment for the murder. The trial judge set a tariff, referred to as the period of years to

be served in custody necessary to meet the requirements of retribution and general deterrence, at twelve years. However, the order

of the Central Criminal Court in England is for imprisonment for life on the count of murder.

17. The learned High Court judge, when reviewing the provisions of the Transfer of Sentenced Persons Act, 1995, as amended by the

Transfer of Sentenced Persons (Amendment) Act, 1997, referred to as “the Act of 1995, as amended,” noted that a transferred

prisoner is entitled to have credited to him or her such remission of sentence as he or she has earned in the sentencing State

according to the sentencing State’s law. However, when the prisoner is transferred to Ireland, Irish law governs any further remission.

Thus, it was held, the practical effect is that although transferred prisoners are given credit for remission in accordance with the law

of the sentencing State, any further remission is in accordance with Irish legislation and the Prison Rules.

18. The High Court noted that the appellant was interviewed by the Parole Board in November, 2006, and he was not granted release.

The Parole Board recommended that he continue with his education and engage with the therapeutic services in relation to offence

focussed work. A review was promised two years later. In May 2009, the Parole Board reviewed the appellant’s case again and

decided to recommend that should the appellant continue to engage positively with the services available to him in prison, that they

would consider, in May 2010, transferring him to the training unit. Following this, in 2011, a release plan would be put in place. The

High Court held:-

“This administration of the appellant’s sentence in Ireland clearly focuses on the issue of rehabilitation. The Parole Board

is of the view that he is not yet ready to be released but that the time when he can be released, with appropriate

safeguards, is approaching within the next few years.”

Nature of Sentence

19. The High Court concluded that the nature of the sentence imposed on the appellant is one of imprisonment and that its duration

is for life. The High Court was of the view that s. 7(10) of the Act of 1995 makes it clear that a reference to the legal nature of a

sentence does not include a reference to the duration of such a sentence. It was held that under the Act the administering State is

prohibited from commuting a sentence of imprisonment into another kind of sentence.

20. The High Court considered the Convention on the Transfer of Sentenced Persons signed in Strasbourg on the 21st March, 1983.

The High Court was satisfied that the Act of 1995, as amended, should be construed in light of the Convention.

21. The High Court held:-

“There is nothing in the Convention which leads me to the conclusion that the nature of a sentence is changed by the

motivation for imposing it, or the underlying rationale in administering it. Once a sentence is, of its nature, a sentence for

life imprisonment, then, under Article 9.3, it is for the administering state to enforce it and ‘to take all appropriate

decisions’. A sentence would be changed as to its nature if, for instance, under Article 10.2, the punishment were

adapted so as to conform to the law of the administering state as to what the nature of a sentence is, within the

meaning of the Convention, this is made clear by Article 11.1(b) whereby it is forbidden to convert any sentence of

imprisonment, that is one ‘involving deprivation of liberty’ into a pecuniary sanction.”

22. The High Court concluded that the nature of a sentence of life imprisonment in England is, as to its nature, the same as a

sentence of life imprisonment in Ireland. It was held that the nature of the sentence to be served, on conviction for murder in Ireland

and England, is life imprisonment, that is its nature, and that is what s. 7(4) of the Act of 1995, as amended, refers to. The nature of

the sentence imposed on the appellant being one of life imprisonment the learned High Court judge held that there are no grounds for

declaring the detention of the appellant to be unlawful. The High Court held that the nature of life imprisonment is not changed as

between Ireland and England when a prisoner is transferred; that where a prisoner is transferred from England to Ireland,

notwithstanding any recommendation made under the law of the sentencing State, the nature of the sentence is imprisonment for

life. Consequently, the High Court concluded that the appellant was in lawful custody; that it can be expected that the appellant will

continue his rehabilitation and await the decision in due course of the Minister for Justice, Equality and Law Reform as to his release

at a time and on terms advised by the Parole Board.

Appeal against the High Court Judgment

23. Against the judgment of the High Court the appellant has appealed. The specific grounds filed in his notice of appeal are that the

learned High Court judge erred in law or in fact or on a mixed question of law or fact as follows:-

(i) In refusing to order the appellant’s release.

(ii) In failing to conclude that the detention of the appellant is unlawful.

(iii) In failing to require the respondent to prove that, on the balance of probabilities, the appellant’s detention was

unlawful.

(iv) In failing to hold that the appellant was detained for the purposes of preventative detention contrary to the

Constitution of Ireland.

(v) In failing to act on the fact that the sentence under which the appellant is in custody is that of a Court of the

United Kingdom and not of Ireland.

(vi) In failing to conclude that the nature of the sentence under which the appellant is in custody was preventative

in nature.

(vii) In failing to conclude that the definition of the “nature” of the sentence did not incorporate its characterisation

as punitive or preventative.

(viii) In excluding from the definition of the “nature” of the sentence the question whether its underlying purpose

was preventative or punitive.

(ix) In concluding that the “nature” of a sentence is not changed by the motivation for its imposition, or the

underlying rationale for its administration.

(x) In admitting into evidence, and having regard to, an explanatory report on the Convention on the Transfer of

Sentenced Persons 1983 in interpreting and applying the Transfer of Sentenced Persons Acts, 1995-1997.

(xi) In failing to interpret and apply correctly the Transfer of Sentenced Persons Acts, 1995-1997.

(xii) In failing to conclude that the sentence imposed in the United Kingdom and administered by Ireland contained a

portion repugnant to the Constitution and laws of Ireland in that it was in whole or in part preventative in nature.

(xiii) In failing to address the appellant’s primary argument under the Constitution of Ireland and in restricting his

consideration to an issue of statutory interpretation.

(xiv) In taking into account an irrelevance, namely the motivation of the Parole Board in Ireland, when making any

recommendation to the Minister for Justice.

(xv) In concluding that the nature, as opposed to the duration, of the sentence imposed on the appellant was one

of life imprisonment.

24. In considering this appeal it is necessary also to consider the notice to vary of the respondent, which was grounded upon the

claim that the High Court erred in law or in fact or on a mixed question of law and fact as follows:-

(a) In incorrectly holding that the appellant was not subject to waiver/estoppel in respect of the claims that he

sought to advance.

(b) In failing to give sufficient weight to the fact that:

(i) at all times it was made clear to the appellant that the management of his sentence would be dealt

with based on the applicable regime in this jurisdiction;

(ii) the idea of consent is central to the transfer scheme.

(c) In failing to apply at all or properly the principles laid down by this court in Brennan v. Governor of Portlaoise

[2008] 3 I.R. 364.

(d) In failing to have regard to the respondent’s consistent position that the issues raised by the appellant were, on

the facts of this case, matters more properly raised by way of judicial review and were not appropriate matters to

raise by means of an Inquiry under Article 40.4.2.

Decision

25. I would uphold the order of the High Court and dismiss the appeal.

26. The appellant was convicted for murder and sentenced in England to a mandatory sentence, imprisonment for life. This is, in fact,

the same sentence as a court would impose on a conviction for murder in this jurisdiction, life imprisonment. The court in England, and

in Ireland, has no discretion, it is a mandatory sentence. The primary necessary finding is that the sentence imposed in England was a

mandatory sentence and was imprisonment for life.

27. The relevant statutory law is to be found in s. 7 of the Act of 1995, as amended, and it states:-

“(1) Where the Minister consents to a request for a transfer under section 6 of this Act, he or she shall apply to the

High Court for the issue of a warrant authorising the bringing of the sentenced person concerned into the State

from a place outside the State and the taking of the person to, and his or her detention in custody at, such place

or places in the State as may be specified in the warrant.

(2) Where an application is made to the High Court under subsection (1) of this section that court shall, if it is

satisfied that the requirements specified in paragraphs (a), (b), (d), (e) and, where applicable, (c) of section 6 (3)

of this Act have been fulfilled and that the Minister consents to the transfer concerned, issue a warrant authorising

the bringing of the sentenced person into the State and the taking of the person to, and his or her detention in

custody at, such place or places in the State as are specified in the warrant.

(3) The High Court may specify, in a warrant under subsection (2) of this section, any place or places to which the

court would have jurisdiction to commit the sentenced person concerned if the sentence in respect of which the

person is being detained by the sentencing state was imposed by the court at the time of the issue of the warrant.

(4) Subject to subsections (5) to (7) of this section, the effect of a warrant under this section shall be to authorise

the continued enforcement by the State of the sentence concerned imposed by the sentencing state concerned in

its legal nature and duration, with due regard to any remission of sentence accrued in the sentencing state, but

such a warrant shall otherwise have the same force and effect as a warrant imposing a sentence following

conviction by that court.

(5)(a) On an application to the High Court under subsection (1) of this section, if the sentence concerned imposed

by the sentencing state concerned is by its legal nature incompatible with the law of the State, the Court may

adapt the legal nature of the sentence to that of a sentence prescribed by the law of the State for an offence

similar to the offence for which the sentence was imposed.

(b) The Minister may, in his or her absolute discretion if he or she thinks it appropriate to do so, include in an

application to the High Court under subsection (1) of this section an application that the Court adapt the duration

of the sentence concerned imposed by the sentencing state concerned to that of a sentence prescribed by the law

of the State for an offence similar to the offence for which the sentence was imposed and, if the Minister does so

and the sentence concerned imposed by the sentencing state concerned is by its duration incompatible with the

law of the State, the Court may adapt the duration of that sentence as aforesaid.

(6)(a) The legal nature of a sentence adapted under paragraph (a) of subsection (5) of this section shall, as far as

practicable, correspond to the legal nature of the sentence concerned imposed by the sentencing state concerned

and shall not, in any event, either –

(i) aggravate it, or

(ii) exceed the maximum penalty prescribed by the law of the State for a similar offence

(b) The duration of a sentence adapted under paragraph (b) of subsection (5) of this section shall, as far as

practicable, correspond to the duration of the sentence concerned imposed by the sentencing state concerned and

shall not, in any event, either –

(i) aggravate it, or

(ii) exceed the maximum penalty prescribed by the law of the State for a similar offence

(7) A person transferred into the State under this Act to serve a sentence or the balance of a sentence imposed on

him or her by another sentencing state may not appeal in the State against the conviction in respect of which the

sentence was so imposed.

(8) Enforcement of the sentence specified in a warrant under this section shall cease where the State is notified by

the sentencing state of any decision or measure, other than a decision or measure in respect of remission, as a

result of which the sentence ceases to be enforceable in the sentencing state.

(9) The Criminal Procedure Act, 1993, shall not apply to a person in respect of whom a warrant is issued under this

section.

(10) In this section, a reference to the legal nature of a sentence does not include a reference to the duration of

such sentence.”

28. This scheme arises when a person has been sentenced in another jurisdiction and wishes to be transferred to a prison in this

jurisdiction to serve his or her sentence. The requesting person or the sentencing State asks the Minister, who may then apply to the

High Court for a warrant authorising the bringing of the person to this State for detention. The High Court, being satisfied that the

requirements of the Act of 1995, as amended, are met and that the Minister consents, issues a warrant authorising the bringing of

the requested person into the State and the taking of the person to, and his or her detention in, specified places for custody.

Subject to s. 7(4) of the Act of 1995, as amended, the effect of this warrant is to authorise the continued enforcement by the State

of the sentence concerned in its legal nature and duration, with due regard to any remission accrued in the sentencing State, but

such a warrant shall otherwise have the same force and effect as a warrant imposing a sentence following conviction by that court.

There are some exceptions, which do not apply in this case. Section 7(5) relates to situations where a sentence imposed by the

sentencing State is by its legal nature incompatible with the law of the State. In such a situation the Court may adapt the legal

nature of the sentence to that of a sentence prescribed by the law of the State for an offence similar to the offence for which the

sentence was imposed. Section 7(7) is also not applicable as it prohibits an appeal in the State against the conviction in respect of

which the sentence was imposed, and this does not arise. Nor does s. 7(6)(a) arise, as the sentence in this case was not adapted as

being incompatible with the law of the State. It is of interest to note that s. 7(6)(b) provides that the duration of a sentence

adapted shall, as far as practicable, correspond to the duration of the sentence imposed by the sentencing court and shall not, in any

event, aggravate or exceed the maximum penalty prescribed by the law. Section 7(10) states clearly that a reference to the legal

nature of a sentence does not include a reference to the duration of such a sentence.

29. The appellant was sentenced to life imprisonment in England. This was a mandatory sentence. There was no discretion exercised

by the sentencing judges. The nature of the sentence is one of life imprisonment.

In fact this mandatory sentence is similar to the sentence a person convicted for murder would receive in the State, imprisonment for

life. It is a mandatory sentence in Ireland also. There is no incompatibility between the sentence received in England and the penalty

prescribed by the law of the State for a similar offence.

30. Section 7(10) clarifies that the reference to the legal nature of a sentence does not include a reference to the duration of such a

sentence. This emphasises that it is necessary to look at the nature of a sentence and not merely to its duration. The nature of the

sentence in issue is that of imprisonment for life. It is a life sentence. Even when a person is released from prison the sentence

continues to exist. The sentence is not at an end. The life sentence does not cease during the life time of the sentenced person,

even when they are released on licence. The sentence in issue is imprisonment for life – it is not a twelve year sentence. The fact

that there was a twelve year tariff in England does not change the nature of the sentence.

31. Once the appellant was transferred to this jurisdiction, the management of the sentence was the responsibility of the Prison

Service and the related services, such as the Parole Board.

32. The appellant is serving a valid sentence of imprisonment for life, in Ireland. The management of that sentence is now governed

by Irish law. The management scheme adopted in England is no longer relevant. Irish authorities could not apply the English law. It is

inappropriate for the Irish State to make reference to any minimum period in the United Kingdom within which the appellant would be

denied parole review. In this case, no issue of inappropriate considerations on the part of the State that detrimentally affect the

appellant arise because the appellant was considered twice by the Parole Board before the twelfth year of his sentence, i.e. the

Parole Board did not manage the sentence according to English practice, but managed his sentence in accordance with Irish law. I am

satisfied that this is the correct approach in law to the management of the appellant’s life sentence. Consequently, I would affirm the

judgment and order of the High Court and dismiss the appeal of the appellant.

33. As to the notice to vary, the learned High Court judge stated:-

“What I do not believe can ever happen is that a prisoner, by his consent incidental to the process whereby he is

imprisoned, or by failing to take a point as to jurisdiction at the appropriate time, or by apparently acquiescing in the form

of his detention, can render what is not in law a valid form of imprisonment into a lawful detention. If a prisoner cannot be

detained by a court in accordance with law, then incidental aspects of consent, acquiescence, or delay cannot make

lawful what is unlawful. Nor would I believe that the Court has any discretion akin to that exercised in judicial review

proceedings to refuse to make an order in habeas corpus proceedings. There is only one issue in this kind of enquiry: is

the prisoner lawfully detained or not? That admits of only one answer where there is no legal foundation to a sentence of

imprisonment.”

I would affirm this approach by the learned High Court judge. The issue for the Court was whether the appellant was lawfully detained

or not. The appellant could not be lawfully detained on the basis of his consent or acquiescence; it is a question of law. However, I

also agree that the issues were more properly matters for a judicial review procedure. But, in the context of this appeal, in this Court,

I would not refuse to determine the matter in the circumstances of the case. As to the main issue, I am satisfied that the

management of the appellant’s sentence is based on the regime in this State and not the management procedures in England.

Conclusion

34. For the reasons given I would dismiss the appeal and affirm the order of the High Court.