Supreme Court dismisses appeal; surrender under EAW upheld despite UK life sentence tariff differences.

THE SUPREME COURT

[S: AP: IE: 2015: 000029]

Denham C.J.

O’Donnell J.

MacMenamin J.

Dunne J.

Charleton J.

O’Malley J.

BETWEEN

MICHAEL ANTHONY BALMER

APPELLANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Judgment of Ms. Justice Dunne delivered on the 12th day of May, 2016

I have read the judgment of O’Donnell J. in this matter and I agree with it. I want to add a few observations of my own.

The background to this matter is set out in the judgment of O’Donnell J. and it is not necessary to repeat all of the details of the

background circumstances to any great extent, save to say that Michael Anthony Balmer was convicted on the 26th March, 1984 of

the murder of his sixty two year old female neighbour on the 26th July, 1983. He was sentenced to life imprisonment for murder at

Exeter Crown Court.

I want to compare and contrast the sentencing regime for murder in the United Kingdom with that of Ireland. In the United Kingdom,

as in this jurisdiction, there is a mandatory sentence of life imprisonment for murder. The way in which a sentence in respect of

murder is imposed in the United Kingdom is different to the way in which such a sentence is imposed in this country. As O’Donnell J.

has explained in his judgment, a sentencing judge in the United Kingdom when imposing a life sentence may give a recommendation as

to the minimum period which should elapse before the individual concerned can be released on licence as provided for in s. 1(2) of the

Murder (Abolition of Death Penalty) Act 1965 of the relevant legislation in that jurisdiction:

“On sentencing any person convicted of murder to imprisonment for life the Court may at the same time declare the

period which it recommends to the Secretary of State as the minimum period which in its view should elapse before the

Secretary of State orders the release of that person on licence under section 27 of the Prison Act 1952.”

The first point to note therefore is that as between the United Kingdom and Ireland there is no difference as to the sentence in

respect of murder. In each country, the sentence provided for is life imprisonment. That is the punishment for murder. Thus, if Mr.

Balmer had been convicted of murder in this jurisdiction, the sentence imposed upon him would have been a sentence of life

imprisonment. The point of departure between the two countries comes from the provisions of the United Kingdom’s s. 1(2) of the

Murder (Abolition of Death Penalty) Act 1965 set out above. It provided for what has become known colloquially as “the tariff”. In the

case of Mr. Balmer, the minimum period recommended was a period of twelve years which was later increased to fifteen years by the

Secretary of State as was then provided for under the law of the United Kingdom. It can be seen therefore that a life sentence is

imposed upon a person convicted of murder in each jurisdiction but at the time of sentencing, the sentencing judge in the United

Kingdom may fix a minimum period of time which must be served by the prisoner before he or she can be released on licence.

The Position in the United Kingdom

Ms. Amelia Nice, a barrister of the Bar of England and Wales, swore an affidavit in these proceedings explaining the terms used to

describe the elements of such sentences in that jurisdiction. As she explained, the terms “tariffs” 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. She pointed

out that these are not statutory terms but describe what is referred to in s. 28 of the Crime (Sentences) Act 1997 and Schedule 21

to the Criminal Justice Act 2003 as the “minimum term” and is a period of imprisonment which the offender has to serve before he can

be considered for early release by the Parole Board. Thus, the minimum period of time to be served before the prisoner could be

considered for release on licence came to be known in that jurisdiction as the “tariff”. It represented the full “punitive” period to be

served. Thus as she explained:

“[L]ife sentences were often referred to as encompassing a ‘punitive’ period, represented by the tariff length and a

‘preventative’ period during which release and liberty on licence was dependent on the assessment of risk.”

The fixing of the tariff in the United Kingdom was previously carried out by the Secretary of State but as a result of a decision of the

House of Lords in R (on the application of Anderson) v. Secretary of State for the Home Department [2002] UKHL 46, it was found

that the fixing of the tariff by the Secretary of State was incompatible with the European Convention on Human Rights. Subsequent

to that decision, legislation was introduced in the United Kingdom by means of the Criminal Justice Act 2003 which came into force on

the 18th December, 2003. Since then, newly convicted offenders have had minimum terms set in open court by the trial judge.

Provision was made in respect of existing prisoners in that legislation for those whose tariff had been set by the Secretary of State to

apply to the High Court to have a new minimum term set. If no application was made the original tariff was the effective punitive

period for the offender concerned.

Ms. Nice then proceeded to describe in her affidavit how those sentenced to life imprisonment for murder are released by way of a

“life licence” issued under s. 28(5) of the Crime (Sentences) Act 1997. Release on licence is effected by the Secretary of State on

the recommendation of the Parole Board. Ms. Nice in her affidavit explained that the licence remains in force for the rest of the

individual’s life and may be revoked and the licensee returned to prison at any time if he/she no longer represents a safe enough risk

to remain in the community. Mr. Balmer was not released on licence until the 18th February, 2011, some twenty seven years after he

had been sentenced to life imprisonment. Under the provisions of the Crime (Sentences) Act 1997, a licence can be revoked at any

time and the licensee recalled to prison to continue to serve his or her life sentence. Such revocation can take place at any time on

the recommendation of the Parole Board. When someone is recalled, the case must be referred to the Parole Board. Once the licence

has been revoked, the offender is unlawfully at large until returned to custody. Ms. Nice in her affidavit added:

“It must be shown that there is a risk of danger to the public before recall is likely to be agreed.”

After being recalled an offender will be in prison until released by the Parole Board. The test for release is the same as it is for initial

release. She then set out the relevant provisions of the Crime (Sentences) Act 1997 as follows:

“Section 28: duty to release certain life prisoners.

(1A) In this Chapter –

(a) references to a life prisoner to whom this section applies are references to a life prisoner in respect of whom an order

has been made under subsection (2) of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 or a direction

under subsection (5) of that section has been given or will be required to be given at the appropriate stage; and

(b) references to the relevant part of his sentence are references to the part of his sentence specified in the order or

direction or, in the case of a life prisoner in respect of whom a direction under subsection (5) of that section has not

been given but will be required to be given at the appropriate stage, the whole of his sentence,

and in this section “appropriate stage”, in relation to such a direction, has the same meaning as in subsection (6) of that

section.

(1B) But if a life prisoner is serving two or more sentences –

(a) he is not to be treated for the purposes of this Chapter as a life prisoner to whom this section applies unless such an

order or direction has been made or given in respect of each of those sentences or such a direction will be required to be

given at the appropriate stage; and

(b) the provisions of subsections (5) to (8) below do not apply in relation to him until he has served the relevant part of

each of them.

(5) As soon as –

(a) a life prisoner to whom this section applies has served the relevant part of his sentence; and

(b) the Parole Board has directed his release under this section,

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

(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this

section applies unless –

(a) the Secretary of State has referred to 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.

(7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at

any time –

(a) after he has served the relevant part of his sentence; and

(b) where there has been a previous reference of his case to the Board; after the end of the period of two years

beginning with the disposal of that references; and

(c) where he is also serving a sentence of imprisonment or detention for a term, after he has served one-half of that

sentence;

and in this subsection “previous reference” means a reference under subsection (6) above or section 32(4) below.

(8) In determining for the purpose of subsection (5) or (7) above whether a life prisoner to whom this section applies has

served the relevant part of his sentence, no account shall be taken of any time during which he was unlawfully at large

within the meaning of section 49 of the Prison Act 1952.

Section 31: Duration and conditions of licences.

(1) Where a life prisoner is released on licence, the licence shall, unless previously revoked under section 32(1) or (2)

below, remain in force until his death.

(2) A life prisoner subject to a licence shall comply with such conditions as may for the time being be specified in the

licence; and the Secretary of State may make rules for regulating the supervision of any description of such persons.

(2A) The conditions so specified shall include on the prisoner’s release conditions as to his supervision by –

(a) an officer of a local probation board appointed for or assigned to the petty sessions area within which the prisoner

resides for the time being;

(b) where the prisoner is under the age of 22, a social worker of the social services department of the local authority

within whose area the prisoner resides for the time being; or

(c) where the prisoner is under the age of 18, a member of a youth offending team established by that local authority

under section 39 of the Crime and Disorder Act 1998.

(3) The Secretary of State shall not include on release, or subsequently insert, a condition in the licence of a life prisoner,

or vary or cancel any such condition, except –

(a) in the case of the inclusion of a condition in the licence of a life prisoner to whom section 28 above applies, in

accordance with the recommendations of the Parole Board; and

(b) in any other case, after consultation with the Board.

(4) For the purposes of subsection (3) above, the Secretary of State shall be treated as having consulted the Parole

Board about a proposal to include, insert, vary or cancel a condition in any case if he has consulted the Board about the

implementation of proposals of that description generally or in that class of case.

(5) The power to make rules under this section shall be exercisable by statutory instrument which shall be subject to

annulment in pursuance of a resolution of either House of Parliament.

(6) In relation to a life prisoner who is liable to removal from the United Kingdom (within the meaning given by section

46(3) of the 1991 Act, subsection (2) above shall have effect as if subsection (2A) above were omitted.

Section 32: Recall of life prisoners while on licence.

(1) If recommended to do so by the Parole Board in the case of a life prisoner who has been released on licence under

this Chapter, the Secretary of State may revoke his licence and recall him to prison.

(2) The Secretary of State may revoke the licence of any life prisoner and recall him to prison without a recommendation

by the Parole Board, where it appears to him that it is expedient in the public interest to recall that person before such a

recommendation is practicable.

(3) A life prisoner recalled to prison under subsection (1) or (2) above –

(a) may make representations in writing with respect to his recall; and

(b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representation.

(4) The Secretary of State shall refer to the Parole Board –

(a) the case of a life prisoner recalled under subsection (1) above who makes representation under subsection (3) above;

and

(b) the case of a life prisoner recalled under subsection (2) above.

(5) Where on a reference under subsection (4) above the Parole Board –

(a) directs in the case of a life prisoner to whom section 28 above applies; or

(b) recommends in the case of any other life prisoner,

his immediate release on licence under this section, the Secretary of State shall give effect to the direction or recommendation.

(6) On the revocation of the licence of any life prisoner under this section, he shall be liable to be detained in pursuance

of his sentence and, if at large, shall be deemed to be unlawfully at large.”

The Irish statutory regime in relation to the release of prisoners

This matter is dealt with in detail in the judgment delivered by O’Donnell J. in this matter. Nevertheless, it would be helpful to set out

the Irish statutory provisions for the purpose of comparison. Thus s. 1 of the Criminal Justice (Temporary Release of Prisoners) Act

2003 (hereinafter referred to as the 2003 Act) provides as follows:

“1. The Criminal Justice Act 1960 is hereby amended by the substitution of the following section for section 2:

“2(1) The Minister may direct that such person as is specified in the direction (being a person who is serving a sentence

of imprisonment) shall be released from prison for such temporary period, and subject to such conditions, as may be

specified in the direction or rules under this section applying to that person –

(a) for the purpose of –

(i) assessing the person's ability to reintegrate into society upon such release,

(ii) preparing him for release upon the expiration of his sentence of imprisonment, or upon his being

discharged from prison before such expiration, or

(iii) assisting the Garda Síochána in the prevention, detection or investigation of offences, or the

apprehension of a person guilty of an offence or suspected of having committed an offence,

(b) where there exist circumstances that, in the opinion of the Minister, justify his temporary release on –

(i) grounds of health, or

(ii) other humanitarian grounds,

(c) where, in the opinion of the Minister, it is necessary or expedient in order to –

(i) ensure the good government of the prison concerned, or

(ii) maintain good order in, and humane and just management of, the prison concerned, or

(d) where the Minister is of the opinion that the person has been rehabilitated and would, upon being released, be capable

of reintegrating into society.

(2) The Minister shall, before giving a direction under this section, have regard to -

(a) the nature and gravity of the offence to which the sentence of imprisonment being served by the person relates.

(b) the sentence of imprisonment concerned and any recommendations of the court that imposed that sentence in

relation thereto,

(c) the period of the sentence of imprisonment served by the person,

(d) the potential threat to the safety and security of members of the public (including the victim of the offence to which

the sentence of imprisonment being served by the person relates) should the person be released from prison,

(e) any offence of which the person was convicted before being convicted of the offence to which the sentence of

imprisonment being served by him relates,

(f) the risk of the person failing to return to prison upon the expiration of any period of temporary release,

(g) the conduct of the person while in custody, while previously the subject of a direction under this section, or during a

period of temporary release to which rules under this section, made before the coming into operation of the Criminal

Justice (Temporary Release of Prisoners) Act 2003, applied,

(h) any report of, or recommendation made by –

(i) the governor of, or person for the time being performing the functions of governor in relation to, the

prison concerned,

(ii) the Garda Síochána,

(iii) a probation and welfare officer, or

(iv) any other person whom the Minister considers would be of assistance in enabling him to make a

decision as to whether to give a direction under subsection (1) that relates to the person concerned.

(i) the risk of the person committing an offence during any period of temporary release,

(j) the risk of the person failing to comply with any conditions attaching to his temporary release, and

(k) the likelihood that any period of temporary release might accelerate the person's reintegration into society or improve

his prospects of obtaining employment.

(3) The Minister shall not give a direction under this section in respect of a person –

(a) if he is of the opinion that, for reasons connected with any one or more of the matters referred to in subsection (2), it

would not be appropriate to so

do . . .”

A decision by the Minister in relation to the temporary release of a prisoner serving a long sentence, including life sentences, is now

made on the recommendation of the Parole Board.

Discussion

There are obvious similarities in relation to those sentenced for murder in the United Kingdom and in this jurisdiction. In each

jurisdiction there is a mandatory life sentence. In each jurisdiction, a person sentenced to life imprisonment may be released at some

stage in the course of the sentence. It is interesting to note that the release of a life prisoner in England and Wales is described in s.

28 of the Crime (Sentences) Act 1997 as a duty of the Secretary of State. In other words, it appears that once the recommendation

to release is made by the Parole Board in the United Kingdom, the Secretary of State has a duty to release the prisoner. In each

jurisdiction, the fact that a prisoner is released either on licence in the United Kingdom or on temporary release in this jurisdiction

does not mean that the sentence is spent. A life sentence is for life and just because the prisoner serving the life sentence has been

released does not mean that the prisoner cannot be recalled to continue serving the sentence or have his temporary release revoked.

It is relevant to note that under the United Kingdom’s Crime (Sentences) Act 1997 (at section 28), the Parole Board is precluded from

giving a direction as to the release of a prisoner on licence unless “The Board is satisfied that it is no longer necessary for the

protection of the public that the prisoner should be confined”.

In this jurisdiction the Minister before making a direction for the temporary release of a prisoner has to consider the matters set out in

s. 2(2) of the Criminal Justice Act 1960 as amended by the 2003 Act. Not surprisingly, one of the matters to which consideration must

be given is the “potential threat to the safety and security of members of the public should the prisoner be released”. This echoes the

provisions in the neighbouring jurisdiction. Thus, it can be seen that in each jurisdiction, a “risk assessment” takes place before a

prisoner is released.

The manner in which the system operates in this jurisdiction has been helpfully described in the judgment of O’Donnell J. herein by

reference to a statement made by the then Minister for Justice in 2006, quoted in Lynch and Whelan v. Minister for Justice (High

Court) [2008] 2 I.R. 142, at p. 170. I will only refer to one portion of that statement where it was said by the Minister in the passage

quoted as follows (at p. 171):

“Even when released, life sentence prisoners remain subject to supervision indefinitely. This supervision is carried out on

behalf of my Department by the Probation and Welfare Service. In all such cases there is the condition that the person

released must be of good behaviour. If he or she comes to the attention of the authorities for any breach of temporary

release conditions, he or she may be arrested without warrant and taken back into custody without the need for fresh

proceedings and may be held in custody thereafter at my discretion.”

It can be seen therefore that there are a number of similarities in the manner in which those sentenced to life imprisonment for murder

can be released at some point in the course of serving their sentence just as is the case in this jurisdiction. Thus, as we have seen,

Mr. Balmer obtained his release on licence, some twenty seven years after his sentence was imposed.

Preventative detention

There are as I have just pointed out a number of similarities between the systems operating in both jurisdictions. However there are

also some differences. One of those differences relates to the role of the Parole Board. In England and Wales, the Parole Board is a

body operating on a statutory footing and, as I mentioned, once it directs the release of a prisoner under the provisions of the Crime

(Sentences) Act 1997 it is the duty of the Secretary of State to release the prisoner. In this jurisdiction, the Parole Board has no

statutory role and can only make a recommendation to the Minister for Justice. Accordingly, unlike the position in the neighbouring

jurisdiction, the Minister is under no duty to accept the recommendation of the Parole Board. That difference aside, the other

significant difference has to be in the way in which sentences of life imprisonment for murder are imposed in the United Kingdom. I

have already described the tariff system in operation in that jurisdiction. Very detailed statutory provisions and practice directions set

out and describe the factors to be considered in fixing the minimum period of the sentence to be served. As Ms. Nice pointed out in

her affidavit the minimum period required to be served has come to be known in that jurisdiction as the punitive element of the

sentence. After the minimum period has been served the period in respect of which the prisoner remains in custody has come to be

known colloquially as the preventative element of the sentence. It is the fact that the latter part of such a sentence in the United

Kingdom has come to be known colloquially as the preventative element that has led to the objection to the surrender of Mr. Balmer

to the United Kingdom given that his release on licence has been revoked and he is unlawfully at large as far as that jurisdiction is

concerned. Objection is taken to his surrender for, it is contended, a further period of preventative detention.

The issue of preventative detention has been considered in this jurisdiction in a number of decisions of the courts. Preventative

detention, as an objective, has no place in the Irish criminal justice system. As a concept, preventative detention was first

considered in the well known case of The People (Attorney General) v. O’Callaghan [1966] I.R. 501. In the recent decision of this

Court in the case of The People (Director of Public Prosecutions) v. Daniels [2014] IESC 64, delivering the judgment of the Court, I

considered the law in this jurisdiction in respect of preventative detention. It has long been accepted that preventative detention by

way of imprisonment is not constitutionally permissible. That was a case in which a young man had been sentenced to life

imprisonment for the attempted murder of a young girl. The argument was made in that case that it could be inferred that, when

viewed objectively, the sentence imposed in that case should be interpreted as including a preventative component. As such it was

contended that the sentence was constitutionally impermissible. An authority had been cited in that case in relation to sentences

imposed for burglary in which the trial judge had expressly included a preventative component but on appeal, the sentences so

imposed were set aside on appeal and reduced sentences were imposed. (See People (DPP) v Carmody 1988 I.L.R.M. 370.) In Daniels,

I commented:

“Thus it seems to me that it can be clearly stated having regard to the passages cited from the authorities referred to

above that an individual being sentenced must be sentenced for the offence or offences before the Court and not on the

basis that the sentence or any part of it is designed to prevent the commission of further offences in the future by that

person. All sentences of imprisonment necessarily involve an element of preventative detention in the sense that when an

offender is in prison, they are not at liberty to commit other offences and in this way, a sentence of imprisonment offers

protection to society from the possible commission of other offences by that individual. However, the sentence imposed

should not be longer than is necessary to punish the offender for the offence or offences concerned. The matter is well

put in a joint decision of the Australian High Court, R v Veen (No.2) (1988) 164 CLR 465, (Mason CJ, Brennan, Dawson and

Toohey J[J)], where it was stated at p. 473:

‘It is one thing to say that the principle of proportionality precludes the imposition of a sentence beyond

what is appropriate to the crime merely to protect society; it is another thing to say that the

protection of society is not a material factor in fixing an appropriate sentence. A distinction in principle

is clear between an extension merely by way of preventive detention which is impermissible and an

exercise of the sentencing discretion having regard to the protection of society among other factors,

which is permissible.’”

Having referred to that passage I concluded:

“Thus, preventative detention as an element of sentencing above and beyond what is appropriate to the particular

offences or offences having due regard to the personal circumstances of the offender is not permissible.”

That case involved the imposition of a sentence of life imprisonment in circumstances where the particular sentence was not

mandatory. I commented in that case:

“When a sentence imposed on an individual is a proportionate sentence having regard to the seriousness of the offence

and the personal circumstances of the offender, it could not be said that the sentence imposed was one which contained

an element of preventative detention even in the exceptional circumstances that a maximum sentence has been imposed

notwithstanding the existence of some mitigating circumstances. Some offences are so grave that a maximum sentence

will be the appropriate sentence. If a sentence is excessive having regard to the nature of the offence and the

circumstances of the accused person, then the sentence will be wrong in principle and will be set aside. If a sentence is

expressly stated to include an element of preventative detention, then, the sentence is likely to be set aside as pointed

out in the case of Lynch and Whelan v. The Minister for Justice, Equality and Law Reform [2012] 1 I.R. 1. Great care

must be taken by a sentencing judge to have regard only to the factors which have been identified over the years as

being appropriate to take into account, such as deterrence, protection of society, retribution, reparation and

rehabilitation. Preventative detention is not one of those factors. I have already referred to the well known passage from

the judgment of Walsh J. in O’Callaghan and would reiterate the point made by him that a person cannot be punished in

respect of any matter upon which he has not been convicted or that anyone should be deprived of their liberty upon the

belief that he or she will commit further offences if left at liberty.”

What bearing does the conclusion in Daniels have for the purpose of this case? It was argued on behalf of Mr. Balmer that as the

sentence of life imprisonment imposed on him included what has come to be described as a preventative element that such a

sentence is one which in this jurisdiction would be constitutionally impermissible.

I think it is worth recalling how it came to be decided that preventative detention was first found to be constitutionally impermissible.

The issue arose in the case of O’Callaghan referred to above in which Mr. O’Callaghan had been refused bail on the grounds that there

was a likelihood that he would commit further offences while on bail. Walsh J., at page 516 of the judgment in that case, stated:

“Ground number 4 of the learned Judge, that is to say, the likelihood of the commission of further offences while on bail, is

a matter which is in my view quite inadmissible. This is a form of preventative justice which has no place in our legal

system and is quite alien to the true purposes of bail. . . .

In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person

should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he

should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most

extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public

peace and order or the public safety and the preservation of the State in a time of national emergency or in some

situation akin to that.”

The position in relation to bail has of course been changed by virtue of a constitutional amendment in 1996 but it is worth

remembering that the origin of the decision in that case which identified the fact that preventative detention was not constitutionally

permissible was the fact that the Court in that case was dealing with a person who was entitled to the presumption of innocence and

where the individual concerned was going to be deprived of their liberty solely on the basis of a belief that he would commit further

offences if left at liberty. That is a far cry from the circumstances of this case. This case concerns a man who has been convicted of

the most serious offence in the criminal calendar. The punishment for murder in this jurisdiction and in the United Kingdom is a

mandatory life sentence. The courts have no discretion in relation to the sentence to be imposed. In practical terms, there is no

difference between the sentence imposed in the United Kingdom for murder and the sentence imposed in this jurisdiction. The fact

that the sentence imposed in that jurisdiction is structured differently does not change that. In the United Kingdom, the provisions of

the Crime (Sentences) Act 1997 recognise that those sentenced to life imprisonment for murder are capable of rehabilitation and at

some stage in the course of serving their sentence, provided the statutory criteria are met, may be released. The sentence to which

they are subject does not expire but remains and they continue to be under supervision. In this country, the position is the same.

Having regard to the possibility of rehabilitation, the prisoner sentenced to life imprisonment for murder may be considered for

temporary release at some stage in the future. If a prisoner is released on temporary release in this jurisdiction, they remain subject

to the sentence of life imprisonment and are under the care and supervision of the Probation Service. The only difference of

significance in the regimes operative in each jurisdiction is that in the United Kingdom, when sentencing a prisoner to life

imprisonment, the sentencing judge may fix the minimum term of imprisonment to be served before the prisoner can be considered for

release by the Parole Board. In each jurisdiction the question of whether or not a prisoner should be released is subject to a

consideration of certain criteria and, common to both jurisdictions, one of the criteria that must be considered is the question of

public safety or protection. I repeat what has been said previously in Daniels that all sentences of imprisonment necessarily involve an

element of preventative detention and that in this way a sentence of imprisonment offers protection to society from the possible

commission of other offences by that individual.

There are a number of observations to be made at this point. When a prisoner in this jurisdiction who is serving a life sentence is

released, he or she is released on terms including supervision by the Probation Service, a requirement to be of good behaviour and

such other conditions as may be appropriate. The statutory criteria to be considered before release is granted have been set out

above. One of those criteria includes the consideration of the potential threat to the safety of the public if the prisoner is granted

temporary release. It could hardly be suggested that a person was entitled to be granted temporary release if the prisoner concerned

did not meet the criteria set out in the 2003 Act. For example, if the prisoner whose release was under consideration posed a threat

to the safety of the public, could it really be suggested that the prisoner serving such a sentence should be entitled to temporary

release? Take the case of someone who has been granted temporary release. Could it be suggested that the temporary release

granted to such a prisoner could not be revoked if it was found that the prisoner was in breach of the terms of the temporary

release? More to the point could it be said that returning them to prison at that point in time was returning them to a form of

preventative detention? I think the answer to that question must be no. It has to be borne in mind that such a prisoner is still subject

to the term of imprisonment imposed. That term is a mandatory life sentence. It does not end by virtue of the fact that someone has

been released on temporary release. The prisoner always remains subject to the sentence. The fact that someone released on

temporary release can be returned to prison does not turn the subsequent period of detention into a form of preventative detention.

In this context, it is worth recalling what was said by Murray CJ in Lynch & Whelan v Minister for Justice [2012] 1 I.R. 1,at p. 25:

“In Dowling v Minister for Justice [2003] 2 I.R. 535, Fennelly J. (nem diss) cited with approval Murphy J in Ryan v

Governor of Limerick Prison [1998] I.R. 198 to the following effect at p. 541:-

‘The temporary release is a privilege or concession to which a prisoner in custody has no right and indeed it has never

been argued, so far as I am aware that he should be heard in relation to any consideration given to the exercise of such a

concession in his favour. That being so, it seems to me the only right of the applicant or nay other person in custody is to

enjoy such temporary release as may be granted to him for whatever period is allowed and subject to such conditions as

are attached.’…

In the same case, Murray J., in a judgment with which other members of the court also agreed, stated at p.538:-

‘It follows that the temporary release of a prisoner before the sentence imposed by a court has expired is a privilege

accorded to him at the discretion of the executive. The 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…’”

There has been some change in the position in Ireland since the Parole Board came into existence but the fundamental point remains

that release on temporary release is a privilege not a right and that the prisoner remains subject to the sentence which has not yet

expired.

In the course of this judgment I have highlighted the similarities between the sentencing regime for murder in this jurisdiction and in

the United Kingdom where the sentence imposed in each jurisdiction for this offence is the same. It is the administration of life

sentences which has diverged between Ireland and the United Kingdom as pointed out by O’Donnell J. in the course of his judgment.

Thus as he observes in paragraph 53 of his judgment:

“The primary sentence for murder in both jurisdictions remains a life sentence which meant that in Caffrey v. Governor of

Portlaoise Prison [2012] 1 I.R. 637, Denham C.J. was able to say that there was no ‘incompatibility between the sentence

received in England the penalty prescribed by the law of the State for a similar offence’. However there are divergences

particularly in the management of the sentence. The fixing of a minimum period in the United Kingdom has the effect that

detention after that period, while still under a life sentence, is subject to a recommendation from the Parole Board, which

itself is referable to only one criterion and then by a negative standard: the prisoner cannot be released until the Parole

Board is satisfied that he or she no longer poses a risk to society. These are significant distinctions which led both the

High Court and the Supreme Court in Lynch and Whelan to distinguish the Irish regime from that in the United Kingdom.”

Even though there is a divergence in the administration of life sentences between the two jurisdictions there are still similarities. The

colloquial terms, “tariff” and “punitive element” describe the sentence as imposed in the United Kingdom but such terminology is not

statutory. In each jurisdiction, prisoners may be considered for release in the course of their sentence with the view to their

rehabilitation and re-integration into society. A risk assessment is one of the factors to be considered in each jurisdiction. In this

jurisdiction, according to the statement of the Minister referred to previously, the situation is that a period of seven years must be

served by the prisoner concerned in this jurisdiction before consideration can be given to release on the advice of the Parole Board. In

that statement it was said by the Minister (at p. 170):

“The Parole Board’s principal function is to advise me in relation to the administration of long-term prison sentences. This,

of course, includes persons serving life sentences for murder who are eligible to have their cases reviewed by the Board

after seven years. Sometimes the timeframe for the first review of a life sentence prisoner by the Parole Board after a

seven year period has led – wrongly – to an assumption that life sentence prisoners are then released. This is entirely

without foundation.”

It must be borne in mind, as pointed out by Murray C.J. in the passage cited above, that the prisoner does not have a right or

entitlement to temporary release. What is permitted is a consideration of whether it is appropriate to consider the temporary release

of the prisoner having regard to the statutory criteria. If those criteria are not met, then the prisoner will not be released. Murray

C.J., in Lynch and Whelan , described the way in which the exercise of the power to grant temporary release under s. 2 of the Act of

1960 was considered as follows (at p. 27):

“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.”

Accordingly, a prisoner sentenced to life imprisonment not granted temporary release by the Minister following a consideration of the

criteria under s. 2 of the 1960 Act does not have his sentence thereafter converted into a form of preventative detention.

It is undoubtedly the case that the point at which the two systems diverge is in the administration of the life sentence. I bear in mind

what has been said by O’Donnell J. at paragraph 59 of his judgment as to the approach in this case, namely on the basis that the

introduction in Ireland of a similar regime to that which now obtains in relation to the management of life sentences in the U.K. would

not be permissible under the Irish Constitution. He went on to say that:

“The fundamental and difficult issue for an Irish court is whether that difference, and putative unconstitutionality, is in

the words of Brennan so egregious, and such a fundamental defect in the legal system or is something which departs ‘so

markedly from the essential scheme and order of the Constitution’ (Nottinghamshire) as to require a court to refuse to

surrender a person under a European Arrest Warrant, either for trial where conviction would lead to such a regime being

imposed, or as here to serve a sentence imposed and managed under that regime.”

Bearing that in mind I cannot see any basis for saying that the regime adopted in the United Kingdom gives rise to such egregious

circumstances as to amount to the denial of fundamental or human rights as described in Minister for Justice v. Brennan [2007] 3 I.R.

732 at page 743. The sentence imposed for murder in each jurisdiction is the same. The factors taken into account in considering the

possible release of a prisoner are similar. The Framework Decision in respect of the European Arrest Warrant noted at Recital 10 that :

“The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its

implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of

the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1)

of the said Treaty with the consequences set out in Article 7(2) thereof.”

It is a trite observation that there are many differences in the way in which the trial process works in the Member States of the

European Union. Equally, there are many differences in the sentencing regimes operated in the Member States. For example, in this

country, a person is entitled to trial by jury save for certain exceptions provided for in the Constitution. Not every Member State

operates a system of trial by jury. While a trial in this jurisdiction without a jury would not be constitutionally permissible save as

provided for in the Constitution, the fact that legal systems in other Member States do not provide for trial by jury does not mean

that an individual facing trial in such Member States cannot be surrendered to that State by reason of that fact. (See Minister for

Justice v Brennan [2007] 3 I.R. 732 at p. 744.) It is only in the case where it is established that surrender would lead to a denial of

fundamental or human rights such that it is necessary to consider a refusal of an application for surrender as pointed out by Murray

CJ in that case. He considered that in egregious circumstances such as a clearly established and fundamental defect in the system of

justice, a refusal may be necessary.

The operation of the sentencing regime in the United Kingdom to which Mr. Balmer was subject, is not in my view, something that

could be classified as a clearly established or fundamental defect in the system of justice in the United Kingdom such that the

application for surrender should be refused. For that reason, it seems to me that the surrender of Mr. Balmer under the European

Arrest Warrant must taken place. In the circumstances I would dismiss the appeal.