High Court allows surrender under EAW Act 2003 despite Article 8 ECHR claims regarding family separation.

Neutral Citation: [2014] IEHC 460

THE HIGH COURT

[2012 No. 343 EXT.]

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003, AS AMENDED

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

ANTHONY CRAIG

RESPONDENT

JUDGMENT of Mr Justice Edwards delivered on the 31st day of July, 2014.

Introduction

1. The respondent is the subject of a European arrest warrant issued by the United Kingdom of Great Britain and Northern Ireland

(hereinafter “the U.K.”) on the 26th November, 2012. The warrant was endorsed for execution in this jurisdiction by the High Court on

the 18th December, 2012. The respondent was arrested on the 14th February, 2014, and brought before the High Court in

accordance with s. 13 of the European Arrest Warrant Act 2003, as amended (hereinafter “the Act of 2003”) when a date was fixed

for the purposes of s. 16 of the Act of 2003. Thereafter the matter was adjourned from time to time, until it came on for hearing

before this Court on the 28th May, 2014. Following the s. 16 hearing the Court reserved its judgment, which it now delivers.

2. This Court is asked by the applicant to make an order pursuant to s. 16 of the Act of 2003 directing that the respondent be

surrendered to such person as is duly authorised by the issuing State to receive him. The respondent does not consent to his

surrender to the U.K. and this Court's jurisdiction to make an order directing that the respondent be surrendered is dependant upon a

judicial finding that the requirements of s. 16 of the Act of 2003 have been satisfied. Accordingly, the Court has been put on inquiry

as to whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied. In so far as

specific points of objection are concerned, the Court has had to consider a number of specific objections to the respondent's

surrender and it is proposed later in this judgment to consider the specific objections pleaded.

Uncontroversial Matters

3. The Court has before it an affidavit of arrest sworn by Detective Sergeant Andrew McGauran. No issue has been raised as to

identity. There is an acceptance by the respondent that he is the person to whom the European arrest warrant relates.

4. The Court has also received and scrutinised a true copy of the European arrest warrant in this case, together with additional

information dated the 29th January, 2014 and further has taken the opportunity to inspect the original European arrest warrant which

is on the Court's file and which bears this Court's endorsement. The Court is satisfied following its consideration of this evidence and

documentation that:

(a) the European arrest warrant in this case has been endorsed for execution in accordance with s. 13 of the Act of

2003;

(b) the European arrest warrant in this case was duly executed and the person who was arrested and who was brought

before the Court is the person in respect of whom the European arrest warrant was issued;

(c) the European arrest warrant in this case is manifestly in the correct form, save for an acknowledged error in relation

to the date of the murder on the warrant which was stated to be the 3rd November, 1974 but was in fact the 3rd

November, 1973. The error in question could not, in this Court’s view, give rise to any injustice in the circumstances of

this case, and it may therefore be overlooked in accordance with s. 45C(a) of the Act of 2003;

(d) although the European arrest warrant in this case is a conviction type warrant there is no suggestion that the

respondent was tried in absentia;

(e) the Court is not required, under ss. 21A, 22, 23, or 24 of the Act of 2003 (as inserted by ss. 79, 80, 81 and 82 of the

Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the respondent.

5. In addition the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) Order

2004 (S.I. No. 4 of 2004) (hereinafter “the 2004 Designation Order”), and duly notes that by a combination of s. 3(1) of the Act of

2003, and Article 2 of, and the Schedule to, the 2004 Designation Order, the “United Kingdom of Great Britain & Northern Ireland” is

designated for the purposes of the Act of 2003 as being a State that has under its national law given effect to the Framework

Decision.

6. The European arrest warrant in this case relates to two offences, viz. murder contrary to common law, and escape contrary to

common law. In respect of the murder offence the respondent was convicted at a trial before Preston Crown Court on the 12th

February, 1974, and was duly sentenced. In respect of the escape offence, the respondent, if surrendered, faces being tried for that

offence and, if convicted, could face a sentence of up to life imprisonment.

Sentencing of the Respondent

7. According to Part (c) of the warrant, the murder charge carried a sentence of life imprisonment. The Court understands this to

have been a mandatory sentence rather than a discretionary maximum sentence. The escape charge carries a potential sentence of

up to life imprisonment, i.e. life imprisonment represents the discretionary maximum sentence.

8. Part (h) of the standard form of the European arrest warrant mandated by Council Framework Decision of 13th June, 2002 on the

European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA) (“the Framework Decision”) is

designed to provide the executing judicial authority with information concerning whether under the legal system of the issuing State it

is possible to seek a review of the penalty imposed, or clemency, in the case of custodial life sentences or lifetime detention orders.

In the present case the issuing judicial authority has provided the following information in Part (h):

“The offender has to serve an appropriate minimum period (the tariff) that reflects the punitive element of the sentence.

Once this punitive term of imprisonment has expired the offender enters into the risk element of the sentence. He may

only be detained if he continues to present a risk to the public. All lifers are released under a licence that remains in force

for the rest of their lives. The life sentence can be revoked at any time if necessary on public protection grounds.

An independent Parole Board conducts a review of the prisoner's sentence once the punitive element of the sentence has

expired. A Judge chairs this panel. An oral hearing can take place to determine whether the prisoner's detention should

continue. The Parole Board must decide whether it is necessary for the protection of the public for the prisoner's

detention to continue. At this hearing the prisoner has the right to be present, to be legally represented and to call and

question witnesses.

The Parole Board can direct the release of the prisoner. If it decides that the prisoner should not be released then a

further hearing will take place within 2 years to review the prisoner's detention, and at regular intervals thereafter."

9. The Irish Central Authority sought clarification from the issuing judicial authority concerning the nature of the sentence that had

been imposed upon the respondent for the murder offence, and the following additional information was provided by letter dated the

24th May, 2013:

“The offence of murder carries a mandatory life sentence. It has always been the case however that offenders convicted

of murder need to have a minimum term set. This is the minimum time that the offender must serve before he is eligible for

release on parole. Up until November 2002, the Home Secretary set the minimum term on the basis of recommendations

from the trial judge, but this practice ceased following the decision in Anderson v Secretary of State [2003] 1 AC 837

which declared the practice unlawful. As a consequence all prisoners who had already been notified of a minimum term by

the Home Secretary had the right to ask the High Court to review it. The High Court could confirm it or lower it, but could

not increase it (Paragraph 3, Schedule 22 Criminal Justice Act 2003).

I enclose a copy of a letter dated 16 September 1994 from the Home Office to Mr Craig explaining how the 15 year tariff

was set in his case. This is the only document I have which evidences the Home Secretary's decision. It also sets out the

effect of the order that he serve a minimum of 15 years.

The reference to ‘the punitive element of the sentence’ in paragraph H is a reference to the tariff. All lifers are released

under a licence that remains in force for the rest of their lives. The licence can be revoked at any time if necessary on

public protection grounds."

The letter of the 16th of September, 1994 that accompanied the additional information dated the 24th of May, 2013 was in the

following terms:

“Mr A Craig (871209)

HM Prison

Haverigg

Dear Mr Clark (sic)

In accordance with the House of Lords' judgement of 24 June 1993, I am writing to inform you of the substance of the

judicial recommendations which were made in your case as to the period to be served by you in order to satisfy the

requirements of retribution and deterrence (the tariff), together with the Secretary of State of the day's decision on the

appropriate period in question.

The trial judge wrote to the then Home Secretary in 1974 about your conviction for murder. (A copy of that part of the

letter which describes the circumstances of the offence is attached). When later asked in 1985 for his view on tariff, the

trial judge said ‘I feel that for a murder of this character a minimum period of 15 years imprisonment is called for.’ The

then Lord Chief Justice commented ‘I agree that a proper minimum would be 15 years.’

The Secretary of State of the day gave careful consideration to the facts of the case, the nature of the offence in

question and the comments of the judiciary. In the light of this consideration, he agreed with the recommendations of the

judiciary, and set the tariff at 15 years accordingly.

The tariff period has now expired. However, mandatory life sentence prisoners should not assume that once the minimum

period fixed for retribution and deterrence has been served they will necessarily be released. The Secretary of State has

no power to release such a prisoner unless and until the Parole Board, which considers the separate question of risk, so

recommends. He does not have to accept a favourable recommendation, and will also take account, in exercising his

continued discretion, of how society would view the prisoner's release at that time.

Yours sincerely”

10. Further information was sought by the Irish Central Authority in particular regarding the terms "tariff" and "the punitive element of

the sentence" which was provided by letter dated 29th January, 2014:

“The terms ‘tariff’ and ‘punitive element of the sentence’ are used in Section h of the European Arrest Warrant to explain

the process for the review of a life sentence. They are not statutory terms but describe what is referred to in Section 28

of the Crime (Sentences) Act 1997 and Schedule 21 to the Criminal Justice Act 2003 as the ‘minimum term’ and is the

period of imprisonment which the offender has to serve before he can be considered for early release by the Parole Board.

Mr Craig was convicted and sentenced on 12 February 1974 and, when he escaped in July 2002, would have already

served his minimum term of 15 years imprisonment. His sentence will now be managed in accordance with Section 28 of

the Crime (Sentences) Act 1997. Section 28 provides that as soon as

a) a life prisoner has served the minimum term of imprisonment; and

b) the Parole Board has directed his release,

it shall be the duty of the Secretary of State to release him on licence.

Section 28(6) provides that the Parole Board shall not give a direction for release on licence of a life prisoner unless

a) the Secretary of State has referred the prisoner's case to the Board; and

b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be

confined.

Under Section 28(7) a life prisoner may require the Secretary of State to refer his case to the Parole Board at any time

after he has served the minimum term. Where there has been a previous reference to the Parole Board, the prisoner may

require a further reference at the end of the period of two years from the disposal of that reference.”

Correspondence and Minimum Gravity

11. The issuing judicial authority has sought to invoke paragraph 2 of Article 2 of the Framework Decision by ticking the box relating

to “Murder, grievous bodily injury” in Part (e) of the warrant. No issue was raised in regard to this, and it is clear from the description

of circumstances in Part (e) that the appropriate box has been ticked and there can be no suggestion of gross and manifest error.

Providing that the threshold with respect to minimum gravity specified in s. 38(1)(b) of the Act of 2003 is met, this Court need not

concern itself with correspondence in relation to this offence. S. 38(1)(b) of the Act of 2003 requires that under the law of the

issuing State the offence is punishable by imprisonment for a maximum period of not less than three years. Part (c)1 of the European

arrest warrant specifies that the offence of murder contrary to common law attracts a penalty of up to life imprisonment. Accordingly

the requirements of s. 38(1)(b) with respect to minimum gravity are met.

12. In regard to the second offence, i.e. the offence of escape contrary to common law, the Court is required to be satisfied both as

to correspondence and as to minimum gravity. The Court was invited by counsel for the applicant to find correspondence with the

identical offence in this State of “escape, contrary to common law”. The Court is satisfied to do so in circumstances where the

jurisprudence indicates that the the offence in both jurisdictions has identical ingredients, and the description of circumstances

contained within the warrant makes clear that the offending conduct alleged would, if proven before a court in this jurisdiction,

establish those ingredients. In addition, counsel for the respondent has not sought to challenge correspondence with the suggested

candidate offence.

13. In relation to the escape offence the threshold for minimum gravity purposes is that provided for in s. 38(1)(a)(i) of the Act of

2003, i.e. that a potential penalty of at least twelve months imprisonment or deprivation of liberty might be imposed by a sentencing

court in the issuing state. As a maximum penalty of life imprisonment applies the minimum gravity threshold is met in this case.

Specific Objections

14. Not all of the objections raised by the respondent in his pleadings were ultimately relied upon. However, the respondent continues

to rely upon the following substantive points of objection:

“1. The surrender of the respondent to the issuing State would constitute a contravention of Article 40.4 of the

Constitution and therefore is prohibited by Section 37(1) of the European Arrest Warrant Act 2003. This is in

circumstances where the life sentence which the respondent would be required to serve in the issuing State is

preventative in nature. The respondent has already served 28 years imprisonment in the issuing State in respect of a

sentence, the punitive element of which was expressly specified as 15 years.

2. The surrender of the respondent to the issuing State would constitute a contravention of Article 40.4 of the

Constitution and therefore is prohibited by Section 37(1) of the European Arrest Warrant Act 2003. The indeterminate

remaining sentence in respect of which his surrender is sought has no punitive, therapeutic or rehabilitative basis.

3. The surrender of the respondent to the issuing State would constitute a contravention of Article 40.4 of the

Constitution and therefore is prohibited by Section 37(1) of the European Arrest Warrant Act 2003. The respondent faces

additional indeterminate sentence for an offence of escape contrary to common law.”

15. A supplemental notice of objection was also filed by the respondent raising two further points, of which one continues to be relied

upon. The applicant raises no objection to it being considered by the Court. The point in question is pleaded in terms that:

"1. The surrender of the respondent to the issuing State would be incompatible with the rights of the respondent in

respect of private and family life under article 8 of the European Convention on Human Rights."

Evidence Adduced on behalf of the Respondent

16. The respondent relies first upon his own affidavit sworn on the 31st July, 2013. As the affidavit is short it is appropriate to

reproduce it in full.

“2. I say that I am currently residing at Kilmakennay, Cordiga, Carrickallen, Co Leitrim.

3. On 14th February 2013 I was arrested at my home Kilmakennay, Cordiga, Carrickallen, Co Leitrim on foot of a European

Arrest Warrant issued from United Kingdom and endorsed on the 18th December 2012. I was later that day taken before

this Honourable Court and remanded in Custody to Cloverhill Prison. I say that I am currently on bail in relation to this

matter. I beg to refer to true copy of the said European Arrest Warrant when produced.

4. I say that I was born on the 24th October 1947 and am 65 years of age. On the 12th February 1974 I was convicted

of murder and sentenced to life imprisonment. I say and believe that I was to serve a minimum sentence of 15 years. I

say that I served 28 years in prison and on the 26th or 27th of July 2002 I left an open Prison at Sudbury.

5. I say that I am living in Ireland for approximately 8 years and prior to moving to my present address I lived in Cork. I

say that in 2006 I appeared before Cork District Court for an offence of intoxication in public place contrary to Section 4

of Criminal Justice (Public Order) Act 1994. I say that since my Court appearance I have not taken an alcoholic drink. I

say that when I came to Ireland I was living rough and receiving food in a centre for homeless people in Cork. The centre

is run by Gerry O'Mahony and through him I became a born again Christian. I say that my Dorothy is also a born again

Christian and we met through other born again Christians.

6. I say that my wife is 68 years and we married on the 29th of September 2007 [Marriage Certificate exhibited]

7. I say that my wife suffers from depression, osteoporosis and arthritis and is in receipt of a Disability Allowance.

8. I am concerned that my wife will have difficulty coping alone and I fear for her safety. I say that we live in a remote

area and my wife can drive her motor car however, she is not physically able to do any work associated with the farm.

9. I say that prior to meeting my wife I purchased a harmonica and was busking on the street. I have rehabilitated myself

and am not the same person who committed murder in 1973. Since I have being in Ireland I am a reformed man, Ireland

has given me a chance, and it is my home. I am very sorry for what I did by taking the life of that innocent man who had

all his life ahead of him.

10. I say at the time of the arrest that I am in receipt of a disability allowance and have received treatment for

depression.”

18. The Court has considered the contents of the respondent’s affidavit and will refer to it to the extent necessary later in this

judgment. It is fair to say that the evidence contained within the respondent's affidavit bears only upon the issue he has raised in

reliance on article 8 ECHR and does not assist with respect to the “preventative detention” issue that he has also raised.

19. The respondent also relies upon the affidavit of his wife, Dorothy Craig, who agrees with the facts deposed to in the respondent's

own affidavit. My comments with respect to the relevance of the evidence contained within the respondent’s affidavit apply equally

to this affidavit.

Case Law, Commentary and Arguments.

20. The Court has received extensive written and oral submissions from both sides which were of considerable assistance. It was also

referred to an extensive body of domestic and foreign jurisprudence, and will refer to this to the extent considered necessary.

21. The jurisprudence to which the Court was referred included:

1. Minister for Justice and Equality v. Nolan [2012] IEHC 249 (unreported, High Court, Edwards J., 24th May, 2012);

2. Minister for Justice, Equality and Law Reform v. Wharrie [2009] IEHC 630 (unreported, High Court, Peart J., 22nd

January, 2009);

3. Minister for Justice, Equality and Law Reform v. Murphy [2010] 3 1R 77;

4. R. (on the application of Anderson) v. Secretary of State for the Home Department [2002] UKHL 46; [2003] 1 A.C.

837;

5. Minister of Justice and Equality v. Kelly (aka Nolan) [2013] IESC 54 (unreported, Supreme Court, 10th December,

2013);

6. O'Leary v. Attorney General [1993] 1 I.R. 102

7. O'Leary v. Attorney General [1995] 1 I.R. 254

8. The People (Director of Public Prosecutions) v. D.O’T. [2003] 4 I.R. 286

9. The State (Cannon) v. Kavanagh [1937] 1 I.R. 428

10. The State (Aherne) v. Cotter [1982] I.R. 188

11. The State (Healy) v. Donoghue [1976] I.R. 325

12. Nottinghamshire County Council v. B [2011] IESC 48 (unreported, Supreme Court, 15th December, 2011)

13. Minister for Justice and Equality v. Shannon [2012] IEHC 91 (unreported, High Court, Edwards J., 15th February,

2012)

14. Minister for Justice, Equality and Law Reform v. Brennan [2007] 3 I.R. 732

15. Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 I.R. 669

16. Clarke v. McMahon [1990] 1 I.R. 228

17. The People (Director of Public Prosecutions) v. Campbell (1983) 2 Frewen 131

18. Pilecki v. Circuit Court of Legnica [2008] 1 W.L.R. 325

19. Grosskopf v. Germany [2011] 53 EHRR 7

20. Stafford v. United Kingdom [2002] 35 EHRR 32

21. Wynne v. United Kingdom [1995] 19 EHRR 333

22. Kafkaris v. Cyprus [2009] 49 EHRR 35

23. James, Wells and Lee v. United Kingdom [2013] 56 EHRR 12

24. R (Wellington) v. Secretary of State for the Home Department [2009] 1 A.C. 335

25. R v. Bieber [2009] 1 W.L.R 223

26. Harkins v. United Kingdom [2012] 55 EHRR 19

27 Ahmad v. United Kingdom [2013] 56 EHRR 1

28. R v. Oakes and others [2013] 3 W.L.R. 137

29. Vinter v. United Kingdom [2012] 55 EHRR 34

30. People (AG) v. O'Callaghan [1966] I.R. 501

31. People (DPP) v. Jackson [2003] WJSC-CCA 3741 26/04/1993 (unreported, Court of Criminal Appeal, Hederman J., 26th

April, 1993)

32. People (DPP) v. Bambrick [1996] 1 I.R. 265

33. Lynch & Whelan v. Minister for Justice, Equality and Law Reform and Ors [2012] 1 I.R. 1

34. Lynch & Whelan v. Minister for Justice, Equality and Law Reform and Ors [2008] 2 I.R. 142

35. Caffrey v. Governor of Portlaoise Prison [2012] 1 I.R. 637

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

37. The People (DPP) v. Anthony McMahon [2011] IECCA 94

38. Whelan v. Minister for Justice, Equality and Law Reform, Ireland and the Attorney General [2007] IEHC 374

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

The Court has read, considered and taken due account of all of this jurisprudence. In addition, it has considered the further case of

Dowling v. Minister for Justice, Equality and Law Reform [2003] 2 I.R. 535.

22. The Court has also had regard to Sentencing Law and Practice, 2nd Ed, by Thomas O’Malley (Thompson Round Hall, 2006):- see

chapter 2 generally, and paragraphs 2-21 to 2-24 in particular; and also chapter 21 generally, and paragraphs 21-32 and 21-33 in

particular. Furthermore, in conducting its own legal research the Court has read two published articles, namely Life Sentences in

Ireland and the European Convention on Human Rights, by Prof J. Paul McCutcheon and Dr Gerard Coffey, both of the School of Law

at the University of Limerick, (I.Y.I.L., 2006, p 101 - 119) and The Life Sentence and Parole, by Mr Diarmuid Griffin of the School of

Law at NUIG and Prof Ian O’Donnell of the Centre for Crime and Justice Studies at UCD (B.J. Criminol (2012) 52(3) : 611-629), and has

found these to be of some assistance. The Court has also given due consideration to the import and effect of the sixteenth

amendment to the Constitution.

23. In its judgment in Minister for Justice and Equality v. Nolan [2012] IEHC 249 (unreported, High Court, Edwards J., 24th May, 2012)

this Court refused to surrender a respondent to the United Kingdom to serve a form of sentence known as an Indeterminate Sentence

for Public Protection (I.P.P. sentence), in circumstances where he had served the punishment component of that sentence and would

be held thereafter solely for the protection of the public, i.e. in preventative detention. The Court considered that to surrender the

respondent in that case so that he might be detained on that basis would breach his constitutional rights, and specifically his right

not to be deprived of liberty save in due course of law as guaranteed in Article 40.4.1° of the Constitution. In the Court’s view the

proposed measure, i.e., the detention of the respondent indefinitely for purely preventative and public protection purposes, was

something which would so markedly depart from the essential scheme and order envisaged by our Constitution, and would be so

proximately connected with any order for surrender that the Court might make, as to justify non-surrender under s. 37(1)(b) of the

Act of 2003, and the Court so ordered.

24. In the present case this Court is required to consider Nolan type arguments relied upon by a respondent who is wanted, inter alia,

to resume serving a life sentence for murder in the issuing state, in circumstances where, having served the minimum term of

imprisonment or “tariff” specified by the trial judge, but not having been granted early release by the Parole Board in the issuing state,

he escaped from lawful custody by walking out of an open prison. The respondent subsequently left the issuing state and came to

Ireland. He had been living openly in Co. Leitrim until he was arrested on the 14th of February, 2013 on foot of the European arrest

warrant with which we are presently concerned.

25. It requires to be stated that the life sentence imposed upon the respondent in this case is a fundamentally different form of

sentence to the I.P.P. sentence that the Court had occasion to consider in the Nolan case and the circumstances of the present

case are clearly distinguishable from those in Nolan. In the circumstances the principle of stare decisis is not engaged and the Nolan

case does not represent a binding precedent that this Court must follow.

26. However, counsel for the respondent has contended that even if the Court is not obliged to follow its earlier decision in Nolan, it

nevertheless ought to do so because, in the present case, a similar issue arises for determination in respect of tariff-expired life

sentences to that which the Court was required to consider in respect of I.P.P. sentences in the Nolan case. Counsel for the

respondent contends that if his client is returned to prison it will be for purely preventative and public protection purposes, and that

this is something which is fundamentally objectionable under Irish constitutional law. His case is that any such contemplated

preventative detention would so markedly depart from the essential scheme and order envisaged by our Constitution, and would be so

proximately connected with any order for surrender that the Court might make, as to justify non-surrender under s. 37(1)(b) of the

Act of 2003.

27. Counsel for the applicant has argued in response that the Nolan case is clearly distinguishable from the circumstances of the

present case, and that having regard to the previous decision of the High Court in Minister for Justice Equality and Law Reform v.

Wharrie [2009] IEHC 249 (unreported, High Court, Peart J., 22nd January, 2009), and the decisions of the Supreme Court in Lynch

and Whelan v. Minister for Justice, Equality and Law Reform [2012] 1 I.R. 1, and in Caffrey v. Governor of Portlaoise Prison [2012] 1

I.R. 637, the Court ought not to approach both cases in the same way. Specifically, counsel for the applicant urges upon the Court

that the legal nature of respondent’s life sentence is the same as a mandatory life sentence imposed by the courts in this jurisdiction,

and that it contains no element of preventative detention. Counsel for the applicant has argued further, and in the alternative, that if

there is any element of preventative detention in how the respondent’s continuing sentence is expected to be administered, such

preventative detention would be permissible in its context. The case is made that under the Irish Constitution preventative detention

is not prohibited in all circumstances. Where, in the case of a prisoner who has been sentenced to imprisonment for life, clemency is

being considered by the executive, or its agent the Parole Board, it is lawful and permissible to retain the prisoner in preventative

detention pending an assessment of on-going risk to the public, or for the protection of the public where on-going risk has been

assessed as existing. Counsel for the applicant maintains that, contrary to the respondent’s contention, such detention would not so

markedly depart from the essential scheme and order envisaged by our Constitution, or be so proximately connected with any order

for surrender that the Court might make, as to justify non-surrender under s. 37(1)(b) of the Act of 2003.

The Court’s Decision

The “preventative detention” issue

28. In this jurisdiction a person convicted of murder faces a mandatory sentence of imprisonment for life under s. 2 of the Criminal

Justice Act 1990 (hereinafter the Act of 1990). Moreover, s. 2 of the Criminal Justice Act 1960 (hereinafter the Act of 1960), as

amended by the Criminal Justice (Temporary Release of Prisoners) Act 2003, confers on the Minister (for Justice and Equality) the

discretionary power to grant such a person temporary release.

29. The nature of the mandatory life sentence for murder in this jurisdiction was considered by Irvine J. in the High Court, and on

appeal by a five judge bench of the Supreme Court, in the conjoined cases of Lynch & Whelan v. Minister for Justice, Equality and

Law Reform and Ors [2008] 2 I.R. 142 (H.Ct); [2012] 1 I.R. 1 (S.Ct). The plaintiffs, who had each received mandatory life sentences

for murder, brought proceedings challenging the constitutionality of s. 2 of the Act of 1990. They complained that the imposition of

the mandatory life sentence provided for by s. 2 of the Act of 1990 offended against the constitutional doctrine or principle of

proportionality because the trial judge had no discretion to impose a sentence that was proportionate to the gravity of the offence

having regard to all relevant circumstances. The plaintiffs also complained that, in exercising a power of release, the Minister was

carrying out a judicial function offending the doctrine of separation of powers enshrined in the Constitution. The plaintiffs further

complained that s. 2 of the Act of 1990 was incompatible with article 5 of the European Convention on Human Rights in that the

length of time actually served in prison was left to be determined by the executive. The High Court dismissed the plaintiffs’ claims and

refused all relief. The plaintiffs then appealed unsuccessfully to the Supreme Court.

30. In dismissing the appeals in the cases of Lynch and Whelan, the Supreme Court held, inter alia, that the life sentence imposed

pursuant to s. 2 of the Act of 1990 was a sentence of a wholly punitive nature and did not incorporate any element of preventative

detention. The Supreme Court, following its consideration of Deaton v. The Attorney General and The Revenue Commissioners [1963]

I.R. 170 ; The People (Director of Public Prosecutions) v. Jackson (unreported, Court of Criminal Appeal, 26th April, 1993) ; The

People (Director of Public Prosecutions) v. Bambrick [1996] 1 I.R. 265 and The People (Attorney General) v. O'Callaghan [1966] I.R.

501, stated (per Murray C.J. at para. 63 et seq.):

“[63] In the court's view a life sentence imposed pursuant to s. 2 of the Act of 1990 is a sentence of a wholly punitive

nature and does not incorporate any element of preventative detention.

[64] It is a sentence which subsists for the entire life of the person convicted of murder. That person may, by virtue of a

discretionary power vested in the executive, be temporarily released under the provisions of the relevant legislation on

humanitarian or other grounds but he or she always remains liable to imprisonment on foot of the life sentence should the

period of temporary release be terminated for good and sufficient reason.

[65] It may be appropriate at this point to note that in the event of a prisoner's privilege of temporary release being

withdrawn by virtue of a breach of the conditions of that release the Minister, or any person acting on his behalf, is

bound to observe fair procedures before withdrawing the privilege of temporary release as was held by this court in The

State (Murphy) v. Kielt [1984] I.R. 458 and Dowling v. Minister for Justice [2003] 2 I.R. 535. Should the Minister fail to

observe such procedures or otherwise act in an unlawful, arbitrary or capricious manner in terminating the release for a

breach of his conditions or otherwise, the prisoner may seek to have that decision set aside by way of judicial review

before the courts.

[66] In all these circumstances the court does not consider that there is anything in the system of temporary release

which affects the punitive nature or character of a life sentence imposed pursuant to s. 2. In particular a decision to

grant discretionary temporary release does not constitute a termination let alone a determination of the sentence

judicially imposed. Any release of a prisoner pursuant to the temporary release rules is, both in substance and form, the

grant of a privilege in the exercise of an autonomous discretionary power vested in the executive exclusively in

accordance with the constitutional doctrine of the separation of powers (per Finlay C.J. in Murray & Murray v. Ireland

[1991] I.L.R.M. 465).

[67] Finally, on this aspect of the matter the plaintiffs have attached significance to the fact that in exercising his power

to grant temporary release under s. 2 of the Act of 1960 the Minister must, inter alia, have regard to the gravity of the

offence and the potential threat which the person's release might pose to the safety of members of the public (including

the victim of the offence for which he was imprisoned). That does not mean that the Minister is exercising a judicial

function when making such a decision and in particular it does not mean that a decision not to release because of a risk

of safety to the public converts the punitive sentence for murder into a preventative one. The Act specifies a range of

grounds upon which a Minister may consider granting temporary release. They include preparing him for release upon the

expiration of his sentence, the re-integration of a rehabilitated prisoner in society, release on grounds of health or other

humanitarian grounds. It is a necessary incident to the exercise of a purely executive discretion that the decision-maker

would be bound to have, before directing a person's release on any of the possible grounds, regard to a whole range of

matters of which some 12 are specified in s. 2(2) of the Act of 1960. Inevitably two of those considerations which ought

to be taken into account in the making of any such decision are the gravity of the offence and the risk which the

temporary release would pose to the public. A decision to grant temporary release even for a short period such as to

permit a prisoner to attend a family funeral would necessarily involve a consideration of any potential risk that that would

have for the safety of members of the public. Such a consideration is incidental to the discretionary power and its

purpose. It is not a decision on the sentence to be served. Refusing temporary release is a decision not to grant a

privilege to which a prisoner has no right. Any such decision or policy on which it is based must serve the purpose or

objects of the provision of the Act of 1960 only. It cannot be seen in any sense as converting a subsisting punitive

sentence into some form of preventative detention.”

31. In Caffrey v. Governor of Portlaoise Prison [2012] 1 I.R. 637 the Supreme Court considered whether the legal nature of a

mandatory life sentence for murder imposed by a court in the United Kingdom, accompanied by a recommendation by the trial judge

that the convicted person should serve a minimum tariff period before being considered for release, was any different from that of a

mandatory life sentence in this jurisdiction. A five member bench of the Supreme Court concluded, by a three : two majority, that the

legal nature of both sentences was the same, although the manner in which the executive in the United Kingdom was required by UK

statute law to manage service of such a sentence is different to how the executive in this jurisdiction is required to do so under Irish

statute law.

32. Procedurally, the Caffrey case involved an inquiry under Article 40.4.20 of the Constitution. The applicant was convicted of

murder in the United Kingdom and on the 15th of December, 1999, he was sentenced to life imprisonment. The trial judge

recommended to the British Home Secretary that the applicant serve a minimum tariff period of twelve years imprisonment for the

murder. This was to meet the requirements of retribution and general deterrence. The applicant sought a transfer to Ireland for the

purposes of serving his sentence as provided for under the Transfer of Sentenced Persons Acts 1995 and 1997. The applicant was

informed by the Irish Prison Service that following his transfer he should expect to serve, at a minimum, the tariff that had been

imposed in the United Kingdom, excluding the time already served. The applicant then signed a letter indicating his consent to the

transfer. The High Court issued a warrant authorising the transfer. No application was made to adapt the nature of the applicant's

sentence. The minimum term of the applicant's sentence as indicated by the trial judge expired in 2010. The applicant sought his

immediate release in the High Court on the basis that the sentence he was serving, having passed the tariff period of twelve years for

punishment and general deterrence, was now entirely preventative, which was incompatible with Irish law. The High Court (Charleton

J.) refused to release the applicant and upheld the lawfulness of his detention, holding that the motivation of the trial judge in setting

a particular tariff did not change the legal nature of the sentence, which was a life sentence, and that the applicant was thus in

lawful custody. The applicant then appealed unsuccessfully to the Supreme Court against the order of the High Court refusing to

release him.

33. The judgment of the majority in the Supreme Court was delivered by Denham C.J. with whom Hardiman and Macken JJ. agreed.

The Chief Justice stated (at paras. 29 to 32:

“[29] The applicant 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) [of the Transfer of Sentenced Persons Act 1995, as amended by section 1 of the Transfer of

Sentenced Persons (Amendment) Act 1997] 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 applicant 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 applicant 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 applicant would be denied parole review. In this case, no issue of inappropriate considerations

on the part of the State that detrimentally affect the applicant arise because the applicant 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 applicant's life sentence. Consequently, I would affirm the judgment and order of the

High Court and dismiss the appeal of the applicant.”

34. The finding in Caffrey that a mandatory life sentence imposed in the United Kingdom, accompanied by a tariff period set by the

sentencing judge to meet the requirements of retribution and general deterrence, is of the same legal nature as a mandatory life

sentence imposed by an Irish Court, must be viewed in its context, namely that it was a finding in connection with the continued

enforcement in this state of a sentence imposed by a court in another state in accordance with the Transfer of Sentenced Persons

Acts 1995 and 1997 (construed in the light of the Convention on the Transfer of Sentenced Persons signed in Strasbourg on the 21st

of March, 1983). That legislation, and in particular s. 7(10) of the Transfer of Sentenced Persons Act 1995, as amended by section 1

of the Transfer of Sentenced Persons (Amendment) Act 1997, makes it clear that, within that particular context, a reference to the

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

35. In practical terms the duration of a life sentence in any particular case will depend on how the sentence is managed or

administered by the executive in the enforcing state, particularly in terms of the granting of early release from prison as an exercise in

clemency. While theoretically a person sentenced to imprisonment for life may be held in prison for the whole of his or her remaining

life, in the overwhelming majority of cases such a person is, at some point during their remaining life, released on licence by the

executive in the exercise of clemency. In Ireland the executive in managing a life sentence enjoys a much wider discretion in terms of

both when, and, if so, in what circumstances, it may release a person on licence, than does the executive in England.

36. The crux of the matter in terms of what divided the majority and the dissenting members of the Supreme Court in the Caffrey

case was whether or not the fixing of a tariff by a sentencing judge, as is required under United Kingdom law, involves more than the

mere fettering of the discretion of the executive in terms of when a person sentenced to life imprisonment is entitled to be considered

for possible release on licence, such that it goes to the very nature of the sentence, rather than simply to its management or

administration (albeit that the manner in which the sentence is managed or administered may have consequential implications for the

duration of such a person’s imprisonment). The members of the Supreme Court who were in the majority in the Caffrey case

considered that the tariff system did not alter the nature of the sentence and that account should not be taken of it. In their view

how the sentence was intended to be managed under the United Kingdom’s legislation was “irrelevant” to their consideration of the

legal nature of the sentence for the purposes of its continued enforcement in Ireland, and indeed that it was “inappropriate for the

Irish State to make reference to any minimum period in the United Kingdom within which the applicant would be denied parole review.”

Conversely, members of the Supreme Court who were in the minority in the Caffrey case considered that the structured division of a

sentence, as is the case in the United Kingdom, into a minimum tariff period to be served in prison, justified only by punitive

considerations, followed by the balance of the sentence during which the person will have his liberty restrained on an ongoing basis,

but will not necessarily continue to be imprisoned, such imprisonment being justifiable only on public protection grounds, represented

“the essence of the sentence”. In their view a mandatory life sentence formally structured in that way was of a different legal nature

to the unstructured mandatory life sentence in this jurisdiction.

37. The dissenting view in Caffrey is succinctly stated in paragraphs 68 to 70 of the judgment of Fennelly J. (Murray J. concurring):

“[68] The expression legal nature is one of the broad import. It is clear and is common case that it is distinct from the

duration of the sentence. The fact that it is a life sentence relates to its duration, not to its nature. It seems clear,

beyond any doubt or argument, that the sentence of life imprisonment which was imposed on the applicant is comprised

of two distinct elements well established and recognised in English law. There is a first period, 12 years in this case, called

the tariff, which was imposed by way of retribution and general deterrence. That is the punitive element of the sentence.

Following the expiry of the tariff period, a prisoner such as the applicant is, when detained in England, serving a part of

the sentence which is justified exclusively on grounds of public protection, i.e. to prevent him from committing further

crimes during the period of the detention.

[69] That, it seems to me, relates to the "legal nature" of the sentence. With great respect to the trial judge, who was

working without the benefit of the detailed account of English law provided by Mr. David Perry Q.C., this is not a mere

matter of the motivation of the sentencing judge. Any judge, including a judge in this jurisdiction, will take into account a

range of considerations when imposing a sentence. A lengthy sentence may be imposed partly as punishment, partly as

deterrent and may also take into account the continued danger the perpetrator presents to the public. It does not lead

to a structured division of the sentence as is the case in English law. Where a sentencing judge specifies what is

described as a minimum tariff, justified only by punitive considerations, the person sentenced will be considered as having

fully served that aspect of his sentence and be eligible for parole, unless his further detention is justified for the

protection of the public. That is, in my view, of the essence of the sentence.

[70] There then remains the question whether such a sentence is compatible with Irish law. It is clear from a consistent

line of authority that a sentence imposed for purely preventative reasons is never permissible. …”

38. It is clear on the evidence before me that the type of sentence considered by the Supreme Court in the Caffrey case was

indistinguishable from the sentence imposed upon the respondent in the present case. It seems to me that in the Caffrey case the

Supreme Court has determined, at least for the moment, the issue as to whether a mandatory life sentence such as that which was

imposed upon the respondent in this case by Preston Crown Court is of the same legal nature as a mandatory life sentence imposed

here. The Supreme Court has said that it is, and this Court is bound by their determination of that issue.

39. In circumstances where the Supreme Court has also held in the conjoined cases of Lynch and Whelan (previously cited) that the

mandatory life sentence as we know it is a sentence of a wholly punitive nature and does not incorporate any element of

preventative detention, this Court must inevitably conclude that, notwithstanding the tariff period that was fixed by the trial judge in

the respondent’s case, the life sentence imposed upon the respondent by Preston Crown Court was also, in its legal nature, a

sentence of a wholly punitive nature that does not incorporate any element of preventative detention.

40. The concerns that led to this Court’s decision in Minister for Justice and Equality v.Nolan [2012] IEHC 249 (unreported, High

Court, Edwards J., 24th May, 2012) have no corresponding application in the present case. What this Court found so objectionable

about I.P.P. sentences were that they were created and judicially imposed with the express objective of “incapacitation”, such that

courts in the United Kingdom had the power to order the detention of individuals deemed to pose an immediate threat to the public

indefinitely, and over and above any appropriate sentence for the crime committed (judicially specified in each case), with provision

for their release only when the executive was satisfied (on the recommendation of the Parole Board) that they no longer represented

a threat to the public. As appears from additional information quoted by this Court at paragraph 12 of its judgment in Nolan, I.P.P.

sentences were expressly differentiated from life sentences by the issuing state. It was clear to this Court beyond any shadow of a

doubt that their objective was not just to punish and deter, but also, and indeed predominantly, to “incapacitate.” Therefore, in this

Court’s view, the nature of an I.P.P. sentence was such that it unquestionably involved preventative detention. That I.P.P. sentences

were in practice administered and managed in the issuing state in much the same way as life sentences were administered and

managed in that state could not alter the fact that such sentences of their legal nature involved preventative detention. In contrast,

the objective of a mandatory life sentence is not incapacitation, and it does not of its legal nature involve preventative detention. As

the Supreme Court has said, such a sentence is “of a wholly punitive nature and does not incorporate any element of preventative

detention.”

41. The respondent in the present case has never been afforded temporary release. It seems reasonable to infer that he had been

stepped down to an open prison in preparation for possible release on licence. However, he absconded before that possibility could be

realised. It bears commenting that even if the respondent in this case is surrendered to resume serving his mandatory life sentence,

he might still be afforded clemency at some point in the future providing that his release on licence represents an acceptable level of

risk in terms of his dangerousness or risk of re-offending. However, as to whether that could ever occur would be a matter solely for

the UK authorities in managing and administering his resumed life sentence in accordance with their domestic law.

42. As to that, in this Court’s view the issuing state is perfectly entitled to have regard to issues such as the dangerousness (if any)

of the respondent, the extent to which he poses a risk to the public, and the need to protect the public, in managing and

administering his mandatory life sentence and in determining whether to exercise clemency in the circumstances of his case and

release him from imprisonment on licence.

43. Both in this country and in the UK an administrative framework has been put in place to manage the temporary release of

prisoners, including those serving life sentences. In Ireland, the executive enjoys a wide measure of discretion in the matter of

release, which is seen as a privilege that is extended to prisoners rather than a right. The granting of temporary release as a matter

of discretion is provided for in statute (i.e. in s. 2 of the Criminal Justice Act 1960 as substituted by the Criminal Justice (Temporary

Release of Prisoners) Act 2003) and is loosely regulated, or guided, by the Prisoners (Temporary Release) Rules 2004 (S.I. No 680 of

2004). There is a non-statutory Parole Board that advises the Minister in such matters but he or she is not bound by that advice. The

Prisoners (Temporary Release) Rules 2004 specify that amongst the factors that the Minister is entitled to have regard to in the

exercise of his discretion is “the potential threat to the safety and security of the public (including the victim) should the person be

released” and “the risk that the prisoner will commit a further offence if released.” To deny a prisoner temporary release while his or

her sentence is still extant where legitimate concerns exist about dangerousness or the risk of further offences is not to hold the said

prisoner in preventative detention. A prisoner in Ireland has no right to clemency; temporary release is a privilege. Moreover, as

Murray C.J. (as he then was) has stated in Dowling v. Minister for Justice, Equality and Law Reform [2003] 2 I.R. 535, at p. 538,

“[t]he liberty which a prisoner enjoys while on temporary release, being a privilege, is clearly not on a par with the right to liberty

enjoyed by an ordinary citizen”.

44. In the United Kingdom the discretion enjoyed by the executive in the matter of clemency and release of prisoners sentenced to

life imprisonment on licence is more heavily regulated than it is here and there are express statutory fetters on the Home Secretary’s

discretion. It appears to be the case that in practical terms the Home Secretary is obliged to release such a prisoner upon licence if

his or her release is recommended by the statutory Parole Board, and that the statutory Parole Board is in turn obliged to review a

prisoner’s case regularly once a certain point has been reached (i.e. once the tariff period has been served), and to recommend

release unless the prisoner presents a risk to the public in terms of dangerousness or risk of re-offending. Be that as it may, these

differences compared to the manner in which mandatory life sentences are managed and administered in Ireland do not change the

fundamental legal nature of such sentences.

45. It is clear to this Court that in the circumstances the proposed surrender measure would not result in the respondent being

subjected to “preventative detention” and accordingly it would not on that account contravene any provision of the Constitution. The

respondent’s surrender is not therefore prohibited under s. 37(1)(b) of the Act of 2003.

The Article 8 ECHR issue

46. In its judgments in Minister for Justice and Equality v. T.E. [2013] IEHC 323 and Minister for Justice and Equality v. P.G. [2013]

IEHC 54, this Court conducted an extensive review of relevant Irish, English, European Court of Human Rights, and Court of Justice of

the European Union (“the C.J.E.U.”) case law on the application of article 8 ECHR to the European arrest warrant jurisdiction, and

sought to distil from that jurisprudence a series of principles for application in those cases and in future cases.

47. It is necessary in the first instance to assess and weigh the public interest in the respondent’s extradition. It is then necessary to

consider the degree to which the proposed rendition measure, i.e. the proposed surrender of the respondent to the United Kingdom so

that he might resume serving his mandatory life sentence, and also so that he might face trial for escaping from lawful custody, will

interfere with, and operate to the prejudice of, the family life of the respondent and his wife. Having determined that, it is then

necessary to balance the public interest in his extradition against those private interests.

48. If, upon a balancing of the relevant public and private interests, it appears that the proposed measure is disproportionate to the

legitimate aims being pursued, and that it is not justified by a pressing social need in the circumstances of the case, then the Court

ought to uphold the s. 37(1)(a) objection based upon article 8 ECHR, and not surrender the respondent, as to do so would breach his

right and/or the rights of his wife, to respect for family life as guaranteed by article 8 of the Convention.

49. Conversely, if, upon a balancing of those interests, it appears that the proposed measure is indeed proportionate to the legitimate

aims being pursued, and continues to be justified by a pressing social need, the Court will be at liberty to surrender the respondent

and will be obliged not to uphold the s. 37(1)(a) objection.

50. It is clear that there is a substantial public interest in the respondent’s extradition. The murder offence is one of the most serious

in the criminal calendar, and the sentence imposed was that of life imprisonment. Moreover, as of the date that the respondent

walked out of the open prison to which he had been transferred, he had not been afforded clemency and released on licence. It is not

clear if he had been recommended for release on licence. If he had not been, it seems reasonable to infer that it was a reasonable

possibility in the foreseeable future in circumstances where he had been stepped down to an open prison. Frequently, this is done as

preparation for envisaged release on licence. However, even if that were so, it does not bear on the seriousness of the crime and the

nature of the sentence imposed, nor does it serve to dilute the public interest in the respondent’s rendition. Indeed, in circumstances

where the respondent ostensibly escaped from lawful custody, and seemingly breached the regime of trust that goes hand in hand

with a prisoner being held in a low security or “open prison”, the public interest in recovering him is all the more substantial from the

perspective of the issuing state if confidence in the penal system is to be maintained, and other prisoners are to be deterred from

similarly walking out of open prisons. While quite a number of years have elapsed since the respondent walked out of prison, and left

the U.K., such delay as has occurred is attributable to the respondent’s own actions in this Court’s view and it does not serve to

eliminate, or even dilute substantially, the significant public interest that exists in favour of the respondent’s rendition. There remains

a pressing social need for his rendition.

51. The Court has taken full account of the personal circumstances of the respondent as disclosed in his affidavit, and also the

affidavit of his wife. However, in the Court’s view the matters put forward are insufficient to outweigh the substantial public interest

in the respondent’s rendition. It will be difficult and distressing for both the respondent and his wife to be separated, particularly

having regard to their advanced ages, and the roots put down by the respondent in Leitrim where he has lived quietly and without

causing trouble for the last eight years or so. Moreover, his wife may indeed have difficulties in coping on her own as identified by the

respondent in his affidavit. However, it is commonplace for elderly people to be suddenly deprived of a life partner for one reason or

another, illness and death being the most common. It is something that just has to be faced. Moreover, the respondent’s position is

not hopeless. The Court has already made the point that, although the respondent clearly has not helped his cause, it remains

possible that he could still secure eventual release on licence, in the event that he is surrendered. Notwithstanding the various

matters put forward in affidavits filed on behalf of the respondent, there is no reason to believe that his rendition would have

profoundly injurious or extraordinary consequences for him, or for his wife.

52. In all the circumstances of the case the Court has concluded that the proposed rendition measure would not be disproportionate

to the legitimate aim being pursued by the issuing state. The Court is not therefore disposed to uphold the respondent’s s. 37(1)(a)

objection based upon his rights, and those of his wife, under article 8 of the ECHR.

Conclusion

53. It is appropriate to surrender the respondent in respect of both offences to which the European arrest warrant relates.