Supreme Court dismisses appeal allowing habeas corpus release where fundamental legal defects invalidate detention. The court held that established illegality requires immediate release under Article 40.4.2° of the Constitution.

THE SUPREME COURT

[Appeal Nos: 429/2014, 427/2014, 430/2014]

Denham C.J.

O’Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

Laffoy J.

O’Malley J.

In the Matter of an Inquiry under Article 40.4.2° of the Constitution of Ireland 1937

[Record Nos: 2014/1062 SS, 2014/1063 SS, 2014/1064 SS]

Between

FINTAN PAUL O’FARRELL, MICHAEL CHRISTOPHER MCDONALD AND DECLAN JOHN RAFFERTY

Applicants/Respondents

AND

THE GOVERNOR OF PORTLAOISE PRISON

Respondent/Appellant

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 12th day of July, 2016.

Introduction:

1. Against the background of the ever increasing internationalisation of crime, which even then involved criminals from a multiplicity of

different states, the Council of Europe commenced a project in 1978 which eventually led to the Convention on the Transfer of

Sentenced Persons (“The Convention” or “The Strasbourg Convention”) being opened for signature as and from the 21st March, 1983,

and coming into force in July, 1985. Ireland deposited its Instrument of Accession on the 20th August, 1986. In all there are now more

than sixty countries which have become parties to this Convention. Nothing turns on the supplemental agreement done at Brussels in

1987, or on the provisions of the Additional Protocol done at Strasbourg in December, 1997.

2. In furtherance of this international commitment the Oireachtas, pursuant to Article 15.2.1° and Article 29.6 of the Constitution,

enacted the Transfer of Sentenced Persons Act 1995, and carried through some amendments in 1997 (“The 1995 Act”, unless

otherwise stated). Whilst based on and fundamentally reflecting its provisions, the legislation did not, as such, incorporate the

Convention into domestic law. Accordingly it is the 1995 Act which confers whatever jurisdiction there is, on both the relevant

Minister of Government and the Superior Courts.

3. By availing of both these statutory provisions, Mr. O’Farrell and the other applicants in the joined proceedings above entitled were

transferred to this jurisdiction on the 29th September, 2006, to serve the balance of sentences previously imposed upon them in

England. Challenging the legality of their continuing detention, they instituted habeas corpus proceedings in June, 2014, which were

later followed by plenary proceedings in which the constitutionality of s. 7 of the 1995 Act was impugned. Those proceedings were

held over until all the issues in the Article 40 application were dealt with.

4. Having made the necessary inquiry, Hogan J., then of the High Court, for the reasons set out in two judgments delivered on the

26th August, 2014, and the 11th September, 2014, respectively, held in their favour and by orders made on the 11th September,

2014, in each case directed their immediate release. Having successfully persuaded this Court to retain seisin of the cases by reason

of their exceptional public importance, the Governor of Portlaoise Prison, as sole respondent, has now appealed against the High Court

decision, as have the successful applicants by a notice of cross appeal on one particular point only. This is my judgment on the issues

so raised which, purely for convenience, I have drafted through the lens of the O’Farrell case. As there is no discernible difference

between any of the three applications, it applies with equal force to both Mr. McDonald and Mr. Rafferty also.

Background:

5. From the evidence tendered at his trial, the applicant, who was a member of an illegal organisation styling itself as the “Irish

Republican Army”, travelled, with others, to Slovakia in July, 2001 in the belief that he and those with him would meet with agents of

the Iraqi Intelligence Service from whom they had previously sought arms and financial support. Over the course of several meetings,

they outlined details of the munitions and ordinance which they required. The agents in fact were members of the British Security

Services who had managed to infiltrate the illegal organisation in question. They were arrested on the 5th July, 2001, and, following

their extradition to the United Kingdom, were charged with a number of grave offences relating to terrorism, including conspiracy to

cause explosions. The accused persons pleaded guilty to such charges at Woolwich Crown Court in May, 2002, and were sentenced

to thirty years imprisonment in respect of the most serious charge, and twelve years on the other charges, to run concurrently with

the longer sentence. The presiding judge directed that the commencement date of all sentences should be the date of their initial

incarceration in Slovakia, namely the 5th July, 2001. On appeal, the lengthier sentence was reduced to a term of twenty eight years

by the Court of Appeal of England and Wales (Criminal Division) on the 15th July, 2005. It is not suggested that the substituted term

should commence from any date other than that as directed by the trial judge.

6. In August, 2005, the applicant, through the appropriate authorities in the United Kingdom, engaged with the Minister for Justice,

Equality and Law Reform (“the Minister”) seeking to avail of the provisions of the 1995 Act. The Department responded by letter

dated the 24th March, 2006, in which its officials set out what they considered would be his expected release date if transferred to

this jurisdiction. Allowing for time served or deemed to have been served in England, and having due regard to the normal remission of

25% available under Rule 59 of the Prison Rules 2007 (S.I. No. 252/2007) (“the Prison Rules”), that specified date was easily capable

of calculation. The only variable related to the precise date of transfer, which had not yet been ascertained, and its effect on the

period of remission. It was also pointed out in such correspondence, erroneously it must be said, that as the regime in England

provided for one third remission, the expected release date for the prisoner if he stayed would be the 29th April, 2020. Noting those

differences in the respective regimes, it was thought highly likely, in fact a certainty, that the actual incarceration period to be

served in this jurisdiction would be longer than in the United Kingdom.

7. On the same date Mr. O’Farrell was also written to: based on a hypothetical transfer date of the 1st July, 2006, his estimated

release date was given as the 20th January, 2022. Acknowledging that he had read this correspondence and that he had been

informed, inter alia, “…that I will continue to serve my sentence of 28 years imprisonment, as reduced from 30 years imprisonment …

and other concurrent sentences, as advised in [the Department’s] letter of 24th March, 2006”, he furnished his consent to the

requested transfer on these terms, and did so by signature verification on the 27th June, 2006. Being otherwise satisfied that the

qualifying criteria had been met and that the sentencing state had so agreed, the Minister thereafter made an application to the High

Court seeking the necessary warrant pursuant to s. 7 of the 1995 Act, so that the transfer and subsequent detention could be

lawfully validated.

8. The High Court, on application being made, issued the warrant on the 27th July, 2006; because of its central role in this case, its

relevant terms, which are as follows, should be noted:-

“WARRANT

THE HIGH COURT

WARRANT pursuant to Section 7 of the Transfer of Sentenced Persons Act, 1995 – 1997

Applicant: The Minister for Justice, Equality and Law Reform

Sentenced Person: Fintan Paul O’ Farrell

Sentencing State: The United Kingdom of Great Britain and Northern Ireland

Crime: (i) Conspiracy to Cause Explosions

(ii) Inviting Another to Provide Money or Property for the purposes of

Terrorism

(iii) Entering into an Arrangement to make Money and Property available

for Terrorism

Sentences in Sentencing State: (a) Twenty Eight Years Imprisonment for Conspiracy to Cause Explosions at (i) above

(b) Twelve years imprisonment concurrent to the said Twenty

Eight Years Imprisonment for the offences (ii) and (iii) above

Date of Commencement of Sentences: 7th May, 2002”

9. Thus, in clear-cut terms, allowing for no ambiguity, the charges in respect of which sentences were imposed were set out. Likewise

with the terms of imprisonment so imposed: firstly, on the conspiracy offence the term was twenty eight years, and, secondly, on the

offences described at No’s. (ii) and (iii) above, the respective terms were twelve years, both to run concurrently with the longer

term. Finally, the due date for the commencement of the sentences was stated to be the 7th May, 2002.

10. In July, 2014, this Court delivered judgment in Sweeney v. Governor of Loughlan House Open Centre & Ors [2014] 2 I.R. 732;

[2014] 2 I.L.R.M. 401 (“Sweeney”), which both legally and factually had a background not dissimilar to that of the instant case.

Murray J. and Clarke J., in separate judgments, held that where a person had been transferred from the United Kingdom to Ireland

under the 1995 Act, it was only the balance of the actual incarceration period of the imposed sentence which he would have to serve

in this jurisdiction, and not the remainder of the sanction which under UK law he would be entitled to serve in the community as a

statutory right, subject to strict conditions permitting his recall in certain circumstances. By a combination of how the word

“sentence” was defined in the 1995 Act, and by reason of the fact that service of a sentence under community licence was not

known to Irish law, that part of the imposed sentence simply fell away and was not enforceable. Therefore, Mr. Sweeney, who had

been sentenced to sixteen years in England, but who under that jurisdiction’s Criminal Justice Act 2003 was entitled to automatic

release from incarceration after eight years, could not be detained in this jurisdiction for any period longer than that. Hence, in the

particular circumstances, and as he had already served this period of time, his immediate release was justified.

11. In June, 2014, after Mr. Sweeney had won his appeal but before this Court had given its reasons therefor, Mr. O’Farrell initiated

an Article 40 inquiry into the legality of his continuing detention, very much relying, at a general level, on the arguments previously

advanced and very shortly thereafter accepted by the Court in Sweeney.

12. Being bound by that Supreme Court decision, Hogan J. was of the view that since Mr. O’Farrell was, in accordance with the

statutory regime then applicable, entitled to automatic release after two thirds of his sentence was served, the s. 7 warrant, which

ex facie specified the sentence term as being twenty eight years, was defective in a fundamental way and thus, subject to a possible

successful application to vary the warrant, was of the view that the legality of the applicant’s ongoing detention could not rest on

such basis.

13. However, the learned judge deferred making an order for the applicant’s immediate release, instead adjourning the Article 40

inquiry, for what transpired to be two weeks, so as to permit the Minister for Justice, if she saw fit, to make an application under the

relevant statutory provision to amend the warrant. Such an application was in fact made. Two variations were sought. The first was

that the period of imprisonment should be specified as eighteen years and eight months and not twenty eight years as stated, this to

reflect both the UK situation which would have meant automatic release for the prisoner after serving two thirds of his sentence and

the Sweeney interpretation of the 1995 Act. The second was to correct the date of the commencement of the sentence, which by

common case was undoubtedly the 5th July, 2001. Applying principles similar to the slip rule, Hogan J. acceded to the latter

application; however, because of the fundamental nature of the first variation sought, he declined to so vary the warrant.

Immediately on delivering such decision, he ordered the release of the applicant. Accordingly, he and the other named individuals in

these proceedings have been at large ever since.

14. The Governor, as the respondent to the habeas corpus application, has served a Notice of Appeal in which several grounds are

raised. The applicant has also served a Notice of Cross Appeal alleging that the trial judge was in error in not directing his immediate

release upon finding that the warrant was defective, alleging that thereafter he had no jurisdiction to continue the inquiry in the

circumstances which he did. Both the relevant grounds of appeal and cross appeal appear through and emerge from the stated

position of all parties as subsequently discussed in this judgment.

15. In order to fully understand the issues in this case and my decision thereon, it will be necessary to consider in some detail both

the Convention and the 1995 Act. These are the measures which I will first deal with.

The Convention:

16. The principal motivation behind the Convention was an attempt under the aegis of the Council of Europe to achieve some measure

of international cooperation in a particular area of criminal law, so that both the ends of justice and the social rehabilitation of

sentenced persons might better be served. This could be accomplished, it was thought, by permitting such persons to serve their

sentences in their home State and within their own communities. This step was designed to alleviate the added problems which

foreign prisoners endured, such as difficulties in communication, in coping with customs and cultural differences, and the infrequent or

even absence of any visitation by their family and friends. All of these matters have a detrimental effect on such prisoners:

accordingly, the steps taken to address those issues were soundly based on humanitarian grounds.

17. The proposed regime was also considered satisfactory from the point of view of the transferring state provided it was satisfied, by

the mutuality of the measures agreed upon, that the penal aspect of the sentence imposed by its criminal justice system would be

maintained. Subject to such integrity being preserved, that state by and large had no further direct interest in those previously

convicted and sentenced in its courts. There was therefore no impediment from its point of view, subject to appropriate safeguards

being in place, to accommodating this type of programme. Indeed, noting the number of countries which since inception have

participated in the Convention, it seems quite clear that it has widespread general approval amongst nations. Accordingly, all

participating states undertook to afford each other the widest measure of co-operation in the implementation of the scheme (Article

2).

18. To achieve its underlying aim, the Convention, in a number of Articles, makes provision for the effective administration of the

proposed scheme; some of the matters so covered would be common to all countries, but not so in every area. From a general

perspective there were some overriding provisions, for example:-

(i) that certain conditions would have to exist before the qualifying criteria for transfer would be met;

(ii) that both the transferring and receiving states, referred to as the “sentencing state” and the “administering

state”, respectively, had to agree to the proposed transfer, as, of course, did the prisoner in question;

(iii) that certain information, together with appropriate supporting documentation, would be given or exchanged

between the countries involved; and,

(iv) that the principle of “ne bis in idem” would be respected.

None of these matters are in controversy in this case.

19. Realising that there would inevitably be differences between the penal systems existing amongst Contracting States, including the

structure of sentences, the Convention provided for a choice of model by which its terms could best be implemented. Further, again

in the realisation of the diversity which undoubtedly existed at the time – and which would almost certainly further increase in

subsequent years – between different administrations in this area of the law, provision was also made by which countries, when

utilising the continuing enforcement model, could regulate the imposed sentence, if such became necessary so as to avoid any

inconsistency or incompatibility with its domestic laws (Article 10.2). This process of adjustment was called “adaptation”, a process

which features quite prominently in this case.

20. Two such regimes were outlined. One was what is commonly referred to as the ‘continuing enforcement’ regime, with the other

being described as the ‘conversion’ regime. Basically, the difference between both was that in relation to the former, the enforcement

of the original sentence was to continue subject to the concept of “adaptation”, to which I have just alluded and which I will later

return to, whereas in the case of the conversion model, the administering state substituted, for the sanction imposed, a sanction

prescribed by its own laws for the same or a similar offence. This would have the effect that the original sentence would no longer be

the direct legal basis for the detention of the transferred individual, but rather in its place now stood the domestic sanction so

substituted. The continuing enforcement regime had its details set out in Article 10 of the Convention, with the conversion model

being subject to the provisions of Article 11.

21. Each contracting party had the option of operating either one or the other regime and could do so either on a case by case basis

(Article 9.2) or, alternatively, on signing the Convention, could deposit with the Secretary General of the Council a declaration which

would have general exclusionary effect (Article 3.3). This State, by invoking the latter, opted for the continuing enforcement model in

both its capacity as a sentencing state and as an administering state. Accordingly, the conversion model was not provided for in the

implementing legislation even as an option in any individual case. In the absence of any such provision, and given that the Convention

is an international instrument with no direct effect, fresh legislation would be necessary to utilise that model in any given case.

22. Article 9 of the Convention sets out the general provisions which apply to the administering state when enforcing the sentence

imposed. These provisions, in the regime preferred by this country, are further referenced in Article 10, which in its material form

reads as follows:-

“Article 10 – Continued enforcement

(1) In the case of continued enforcement, the administering State shall be bound by the legal nature

and duration of the sentence as determined by the sentencing State.

(2) If, however, this sentence is by its nature or duration incompatible with the law of the administering

State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to

the punishment or measure prescribed by its own law for a similar offence. As to its nature, the

punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be

enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing

State, nor exceed the maximum prescribed by the law of the administering State.”

From both Articles, two points must be noted: firstly, that the enforcement of the sentence is governed by the laws of the home

state, which alone is competent to make all appropriate decisions in that respect (Article 9.3); and, secondly, that the administering

state is bound by the legal nature and duration of the sentence as per the laws of the sentencing state (Article 10.1).

The 1995 Act:

23. As important in all as the Convention is, it of course has no direct effect in this jurisdiction, much like many other agreements

entered into at inter-governmental level, a prime example of which is the European Convention on Human Rights which, although

signed up to by Ireland in 1953, only became directly associated with Irish law in 2003. Apart from matters covered by European

Union law, all international agreements which are intended to have the force of law in this jurisdiction are subject to Oireachtas

approval (Article 29.6 of the Constitution; Re Ó Laighléis [1960] I.R. 93). Even when such approval is forthcoming, what becomes law

is the Act as passed and not the preceding agreement (para. 2 supra); accordingly it is to that extent only that the Convention on

the Transfer of Sentenced Persons applies in this jurisdiction.

24. The procedure put in place by the legislation applies to both the possible transfer into and out of the state: the former to cover

Irish nationals or nationals so regarded, and the latter to cover sentenced persons regarded as foreign nationals. It provided, in

respect of the inward flow, that either the sentencing state or the individual concerned could make an application seeking the

consent of the Minister for Justice to such a transfer. The criteria by which such a prisoner qualified were pretty much identical to

those set out in the Convention. So too was the definition of a “sentence”, which was a key issue in Sweeney, a case very much in

point on this appeal; thus a “sentence” was described as meaning:

“… any punishment or measure involving deprivation of liberty ordered by a court or tribunal for a limited or unlimited

period of time on account of the commission of an offence”. (s. 1(1) of the 1995 Act; Article 1 of the Convention)

Obviously, the Act also included a requirement that the sentencing state would have to agree to any suggested or proposed transfer.

25. In order to facilitate the transfer and the lawful taking into custody of a qualifying person and his or her subsequent detention in

this State, the process put in place was set out in s. 7 of the 1995 Act. That involved obtaining from the High Court a warrant,

thereby validating the steps necessary to effect such a transfer and detention (“a s. 7 warrant”). The section, with subs. (5) and (6)

in their original form, read as follows:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

conviction by that court.

(5) On an application under subsection (1) of this section, if the sentence concerned imposed by the sentencing

state concerned is by its legal nature or duration incompatible with the law of the State, the court may adapt the

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

sentence was imposed.

(6) Where a sentence is adapted under subsection (5) it shall, as far as practicable, correspond in nature to the

sentence imposed by the sentencing state and shall not, in any event, either—

(a) aggravate it by its legal nature or duration, or

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

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

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

sentence was so imposed.

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

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

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

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

section.”

26. The Transfer of Sentenced Persons (Amendment) Act 1997 (“the 1997 Act”) substituted new subsections for subs. (5) and (6)

and added an additional provision immediately after the existing subs. (9): all are of relevance, some of considerable relevance, in

that at least in one respect the amendments have real significance, and they must thus be noted:-

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

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

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

similar to the offence for which the sentence was imposed.

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

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

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

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

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

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

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

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

and shall not, in any event, either—

(i) aggravate it, or

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

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

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

shall not, in any event, either—

(i) aggravate it, or

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

…

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

such sentence.”

27. There is one other provision of high significance. It is contained in s. 9 of the 1995 Act and enables the Minister, in relation to a s.

7 warrant and in order that effect may be given to provisions of the Convention, to apply to revoke or vary such a warrant; it reads:-

“9 – (1) If at any time it appears to the Minister appropriate, in order that

effect may be given to the provisions of the Convention … the Minister may—

(a) …

(b) in the case of a warrant under Section 7 of the Act—

(i) apply to the High Court for an order revoking the warrant, or

(ii) apply to the High Court for an order varying one or more of the provisions of the warrant.

(2) On [such] application … the High Court may make an order … if it considers it appropriate to do so in order that

effect may be given to the provisions of the Convention.”

Interpretative Approach to Domestic Legislation:

28. It is entirely well established that in seeking to interpret Irish legislation, either of a primary or secondary level, which has been

designed to reflect an international commitment previously entered into, the same should be informed by and interpreted in a manner

consistent with the international law obligations undertaken by this State in becoming a signatory to such Convention. (See, for

example, Bourke v. Attorney General & Anor [1972] I.R. 36, H.I. v. M.G. [2000] 1 I.R. 110 and Crilly v. Farrington & Ors [2001] 3 I.R.

251). Thus both the 1995 Act and the amending provisions of the 1997 Act will have to be looked at and considered in this light.

Summary of Essential Provisions:

29. Approaching the Act, as informed by the Convention, in this way, but disregarding the decision in Sweeney for a moment, it

seems to me that the following can be said:-

At a General Level:

(i) That at the heart of the Convention was a desire, backed by humanitarian considerations, to make provision for

a foreign national to be repatriated to his home country so as to serve the sentence or the balance of the sentence

imposed upon him in the transferring state. The benefit to such person was that his detention would be within the

familiarity of where he was a national and where his family and friends were likely to be.

(ii) It was never the aim of the Convention at the level of principle that any prisoner would otherwise benefit from

such transfer: in particular, it was not intended that the regime by which he would serve the balance of the

sentence would be less onerous than that of the transferring state or that its duration would be more beneficial to

him.

(iii) However, given the likely diversity of the regimes in different contracting states, it was clearly recognised that

a strict “equivalence” of either regime or duration may not be possible, or indeed even legally achievable. So a

working compromise was put in place whereby the “legal nature” and “duration” of the sentence would still be

governed by the laws of the sentencing state whereas the enforcement and administration of the sentence would

be covered by the receiving country.

(iv) There were good grounds to justify this approach at both ends of the process: central to the mutual trust and

co-operation between the contracting parties was an obligation on the administering state to uphold the values of

the penal regime and the integrity of the sentencing structure which operated in the sentencing state. No such

state, with reputational honour or with due respect for the victims of crime, could accept less.

(v) However, it would not be possible or feasible outside the Union, and even then only if harmonising measures

were in place, to expect that the laws of each contracting state regarding the enforcement of a sentence would be

the same. As this case clearly demonstrates, even with a jurisdiction which so closely shares many of our cherished

common law values, the diversity can be great. So, subject to the preceding obligation to respect the legal nature

and duration of the sentence, the laws of the host country were given command over its administration.

30. Continuing with the effect of the Act, in the context of the Convention but now:-

At a Specific Level:

(i) The steps preparatory to a s. 7 application must be in place: accordingly, the applicant must be, or must be

deemed to be, a national of the State; the sentencing process must be at an end as determined by final court

order; the duration to be served must meet the minimum threshold; there must be the necessary correspondence

under the laws of England and Wales and under Irish law concerning the offences of which the applicant had been

convicted; and the jurisdictions involved must agree to the transfer, as obviously must also the prisoner in question

(s. 6 of the 1995 Act).

(ii) Before an applicant can be brought into the state, a successful application must be made to the High Court for

the issue of a warrant (a “s. 7 warrant”), which if obtained would validate all of the other steps necessary so as to

give full effect to the underlying provisions, both at domestic and international level.

(iii) In particular, the statutory effect of such a warrant would be to authorise the continuing enforcement of the

sentence in this State in its “legal nature and duration”, as provided for by the law of the transferring state;

otherwise, however, the warrant shall have the same force and effect as one imposing a domestic sentence

following conviction by an Irish court.

(iv) It is not contested but that the start date will be that as specified by the trial judge, or in default will most

likely be the sentencing date, and that any time served and remission earned (if any) before transfer must be

allowed for, as must be the results of any analogous or similar provisions in the receiving state. The former will be

governed by the laws of the sentencing state, and the latter by those of the administering state. These and other

similarly categorised relieving measures are well defined and create no difficulty.

(v) Provision is also made for the suspension/cessation of the power of the sentencing state to enforce the

sentence, an issue I will return to later in this judgment.

All of these measures are to be found in ss. 6 and 7 of the 1995 Act.

The Adaptation Process:

31. As above stated, and as both the Convention and the 1995 Act make clear, a state which opts for the continuing enforcement

model is bound by the “legal nature” and “duration” of the sentence, as those terms are understood by the laws of the sentencing

state. However, it was also recognised in both of these measures that the sentence, informed by its legal nature and duration, may

be legally or even constitutionally incompatible with the laws of the administering state. This difficulty would most likely arise between

states which have different legal systems regarding, for example, a particular sentence, such as the death penalty, the component

parts of penalties in general or the minimum/maximum length of sentences. The Convention would thus be at an end at this point

unless the incompatibility could be addressed, at least in principle. No state could be expected to underpin detention provisions,

backed by the force of its institutional bodies, which were intrinsically inconsistent with its own laws. Hence, the adaptation process

provided for in Article 10(2) of the Convention and domestically by ss. 7(5) and (6) of the 1995 Act.

32. In their original wording, ss. 7(5) and (6) of the 1995 Act were uninformative as to the distinction between “legal nature” and

“duration”. However, in the 1997 Act these concepts were differentiated and separately dealt with: this for a definite purpose (para.

33 infra). As amended, the resulting situation can be described as follows:-

(i) Where the imposed sentence is incompatible with the laws of this State by virtue of its legal nature, the Court,

on a s. 7 application, may “adapt” the legal nature of the sentence to that of a domestic sentence prescribed by

Irish law for a similar offence;

(ii) Where the imposed sentence is incompatible with the laws of this State by virtue of its duration, the Court may,

subject to the paragraph next following, likewise adapt the duration in a manner similar to that set out at

subparagraph (i) above;

(iii) Both the legal nature and the duration of a sentence so adapted under this process shall correspond, as far as

practicable, to the legal nature and duration of the original sentence as provided for by the sentencing state, but

shall not in any event either

• aggravate it, or

• exceed the maximum penalty prescribed by the laws of this State for a similar offence.

Finally, it is expressly provided that the “legal nature” aspect of a sentence does not include the “duration” aspect of it (s. 7(10) of

the 1995 Act).

33. A crucial point of distinction between the original version and the amended version of the subsections in question should be

noted. Prior to 1997, the Court, of itself, when dealing with an application for a s. 7 warrant, had the power to invoke the adaptation

process relative to either or both the legal nature of the sentence or its duration. Such jurisdiction and its exercise was thus vested

in the High Court. The purpose of the amendment, so far as duration was concerned, was to make the Minister for Justice the

controlling individual in this regard. As appears from the express wording of s. 7(5)(b) of the 1995 Act as amended, the Minister has

an absolute discretion, when applying for a s. 7 warrant, as to whether she will or will not seek to include in her application any

reference to duration. If she doesn’t, it would appear that the Court has no power to issue an adaptation order in that respect, even

if it was otherwise minded to so do.

34. It is said by Professor Kevin Boyle, in the Annotations made by him on section 7 of the 1997 Act (ICLSA, R.62: August 1998), that

these changes were introduced in the context of the Good Friday Agreement of 1998 so as to facilitate the transfer from England to

Ireland of certain prisoners who had been sentenced in respect of specified offences to terms of imprisonment sometimes far in

excess of that provided for by domestic law in relation to the same offences; he continued: “…otherwise, that is in the absence of

the legislative change, grave doubts existed as to whether or not the sentencing state would consent to the transfer of this, at the

time, identifiable cohort of prisoners”. Whether or not that is the case, it seems quite clear that in the absence of making an

application for and obtaining an adaptation order on the “duration” aspect of the sentence, a prisoner who seeks repatriation may

have to serve a custodial term in excess of the maximum prescribed for the same offence by the laws of this State, if the sentencing

court should have so ordained. If, however, such process has been successfully engaged with, the restriction which travels with such

an order, namely that the domestic maximum cannot be exceeded, will apply.

35. At the level of principle, this process of adaptation is rooted in the requirement to achieve the “nearest equivalent” to the

sentence as imposed, so as to reflect its legal nature and duration. Certain obvious factors will feed into this exercise: evidently the

start date, as previously noted, will be that as specified by the trial judge, or in default will most likely be the sentencing date.

Likewise, it is not contested but that time served and remission earned (if appropriate or available) before transfer must be allowed

for, as must be the effects of any analogous, similar or even extended provisions in the receiving state. The former will be governed

by the laws of the sentencing state, and the latter solely by those of the administering state. But subject to these, and to the non-

aggravation restriction and maximum cap provision, the overriding requirement is that the adapted sentence shall “as far as

practicable” correspond in legal nature and, if invoked, duration, to the sentence originally imposed.

36. There is also one other matter which must be mentioned. It is entirely impossible, in my view, to suggest under any disguise that

a transferred prisoner can be forced to serve a sentence in excess of the term specified by the final court of the sentencing state.

Murray J. in Sweeney so confirmed, and I am entirely in agreement with this view. So, if the deadline period is, say, ten years, that

cannot be increased. This in my opinion is a fundamental pillar of the whole functional mechanism put in place at both international

and national level. The contrary is neither permissible nor justified, and has no basis in the model preferred by this State. Even where

an adaptation order has been made, this principle applies. Therefore, it is in my view fundamentally wrong to suggest that a

transferred prisoner can be forced to serve in this jurisdiction a sentence in excess of that passed down by the trial court in the

sentencing state.

The Difference between the Laws of England & Wales and those of Ireland in this Area:

37. The law of a foreign jurisdiction is, for the purposes of any domestic case, a question of fact, and like all others must be

established in the ordinary way. Normally affidavit evidence is filed from lawyers who can testify as to their competence and expertise

in this area. Such a course was followed in this case with Mr. Hamish Arnold, solicitor, giving such evidence via an affidavit procured

by John M. Quinn & Company, solicitors acting on behalf of the applicant, and by Ms. Valerie Ailes, representing the views of both

herself and those of Mr. David Perry Q.C., which were contained in an affidavit filed by the Chief State Solicitor.

38. There is no dispute between either deponent as to what the UK statutory regime referable to Mr. O’Farrell would have been if he

had continued to serve his sentence in that jurisdiction. The position is as follows:-

(i) Under the Criminal Justice Act 1991, as amended, those serving a determinate sentence of four or more years

were liable to be released after serving one half of their sentence provided the same was approved by the Parole

Board; having reached the two thirds point they were automatically entitled to release.

(ii) That regime was altered by the Criminal Justice Act 2003, as later amended, where those serving determinate

sentences for offences committed after 4th April, 2005, were automatically entitled to release having served 50% of

their sentence: at that point, the “requisite custodial period” would have been served and as a result it was the

duty of the relevant Secretary to release the prisoner (ss. 2 and 4 of the Act). Such release was on licence with

the remaining period being served in the community subject to strict conditions which, if breached, could in certain

circumstances result in the person’s recall to prison.

(iii) Pursuant to the transitional provisions of the 2003 Act, the applicant, who in any event was convicted in 2002,

was a person whose crime fell into a particular category where automatic release would only take place at the two

thirds point, and not at the halfway stage: that release would likewise have to be served under community licence,

again subject to the same conditions, including that of recall as earlier mentioned.

(iv) Accordingly, he would have had to serve a custodial period of eighteen years and eight months from the

commencement date of his sentence.

(v) However, “the sentence” is defined as including the aggregate of both the custodial period and the community

licence period (s. 227 of the Act).

39. The conditions under which the residue of a sentence has to be served in the community were not extensively dealt with in the

evidence, nor is it necessary I think to dwell upon them at any great depth in this judgment. The reason for this is that the

significance of the point under discussion does not rest at a detailed level, but rather centres on the structural nature of the

sentencing regime in the UK, an important part of which is undoubtedly that period served under licence in the community. However,

if one should be so minded, reference can be made to the judgment of Clarke J. in Sweeney (para. 4.2) for such detail, which I have

no reason to believe would differ in any way from that pertaining to the instant case.

40. In R. v. Governor of Brookhill Prison, Ex parte Evans (No.2) [2001] 2 A.C. 19, the House of Lords, in classifying the legal basis on

which such conditional freedom rests, described it as a “right”, a breach of which is justiciable and can be enforced by the prisoner

concerned. As can thus be seen, the entitlement to release at the point identified is conferred by way of statutory right and is not

dependent on the exercise of any discretion, nor is it related to any process similar to that of earning remission by good conduct or

being deprived of such remission by improper conduct, or the like. Similarly so, it is not contingent on or otherwise affected by

anything which may occur during the enforcement, service or administration of the underlying sentence. In addition, it is neither

subject to the views of any third party nor controlled by the power or authority of any such individual. Subject to court review, the

right to automatic release, having been given by Parliament, can be withdrawn or modified only by Parliament.

41. Whilst the case of Regina (West) v. Parole Board; Regina (Smith) v. Parole Board (No 2) [2005] 1 W.L.R. 350 was centrally

concerned with the procedure which the Parole Board should follow when it was sought to revoke a licence under which the

sentenced prisoner had previously been conditionally released, nonetheless it is also of interest because Lord Bingham addressed the

nature of a custodial sentence which gives rise to this automatic release entitlement: his observations equally apply whether the

release date is triggered at the halfway point or at the two thirds stage of the sentence. Having stated that save in an exceptional

case the relevant provisions of the 2003 Act should not influence the length of the sentence passed, Lord Bingham at para. 24 of the

report continued:-

“…the sentence passed is not (as it has not within living memory been) a simple statement of the period the

defendant must spend in prison. The sentence is in reality a composite package, the legal implications of which are

in large measure governed by the sentence passed.”

That this is a statement of high authority on how such sentences should be viewed is not in doubt.

42. The penal system operating in this country has no provision comparable to that which operates in the neighbouring jurisdiction.

Consequently, the concept of a prisoner being released to serve a pre-determined portion of his sentence under community licence is

not known to our law. Perhaps the nearest which we have is the process of suspending a portion of a sentence, which is distinctly

different in many respects: firstly, there is no automatic right in this regard; secondly, it is not mandated by statutory provision;

thirdly, it is judicially driven and when permitted will necessarily form part of the order of the sentencing judge; and, finally, whilst

there is a tendency to attach the same conditions in all such cases, nevertheless many individual ones may be added so as to reflect

the particular circumstances of the presenting case.

43. In addition, there is also provided for in this jurisdiction, which is no longer the case in England, the principle of remission; this is

covered by the Prison Rules, in particular Rule 59 of the 2007 version, which is now applicable. Whilst such remission may be lost, in

the vast majority of incarcerations the prisoner will be entitled to, and will receive credit for, a period representing 25% of his

detention. Once applied, his subsequent release is unconditional and he is regarded as having satisfied in full the term of imprisonment

specified by the trial court in imposing the sentence at the outset. He is thus considered as a person who has paid his debt to society

for the crime in question.

44. As is thus self evident, the changes or differences between the penal regime operating in England and Wales, on the one hand,

and that operating in this jurisdiction, on the other, are highly significant at certain critical junctures in the process, relevant to this

case. Accordingly, there is very little reality in suggesting that a meaningful comparison can be made between these two very

different systems.

Discussion/Decision:

The Estoppel, Waiver or Acquiescence Point:

45. Following the finality brought to the sentencing process by the order of the Court of Appeal (Criminal Division) of the 15th July,

2006, Mr. O’Farrell indicated his intention to seek to avail of the provisions of the 1995 Act. The correspondence in this regard is

adequately set out at paras. 6 and 7 supra. Therefrom there can be no doubt whatsoever but that the applicant freely and with full

knowledge consented to his transfer to this jurisdiction on the basis of the Department’s calculations as to his expected release date,

as set out in its letter dated the 24th March, 2006. Having referred to the different regimes operating in both jurisdictions, it was

perfectly evident that he was seen by the Department as having to serve the term of twenty eight years in prison, less time served in

the United Kingdom, and less remission obtained in this jurisdiction. His estimated discharge date was given as January, 2022, some

twenty months longer than his anticipated release date if he had remained in England. The fact that the Department was not au fait

with the English regime, though difficult to understand and never explained, is not germane. It is therefore suggested on behalf of the

appellant that, by reason of Mr. O’Farrell’s full acceptance of this situation, he should thereby be prohibited from asserting the

illegality of his detention on the grounds so advanced on his behalf.

46. This virtually identical point was raised in Sweeney and rejected by Murray J. The learned judge, at para. 30 of his judgment,

said:-

“That was the view of the Irish authorities [16 years in prison] and it may well have been communicated and

understood by the appellant, including their view on his release date, but the mere communication of that

information, or non-communication as the case may be, cannot affect and does not affect the fundamental issue in

this case.”

I respectfully agree with this view, and find considerable difficulty in identifying any basis in law for the contrary suggestion. Whilst I

fully recognise and thoroughly agree that the underlying application in this particular case is without personal or humanitarian merit,

nonetheless the rule of law must prevail. One’s consent to an illegal detention cannot change its nature: neither can one’s objection

to a lawful detention. Concepts such as those under discussion cannot make lawful that which is unlawful. If detention is in

accordance with law, it is valid. If not, it is invalid.

47. This issue was considered by the Supreme Court in Caffrey v. Governor of Portlaoise Prison [2012] 1 I.R. 637 (“Caffrey”), where

the Chief Justice held that a prisoner could not, by consent or acquiescence, convert or render a detention valid which otherwise was

not so. She was affirming the decision of the High Court in this respect. In addition to consent and acquiescence may I add waiver

and other analogous concepts; whilst these may indeed have a part to play in the lawful exercise by a court of its discretionary

jurisdiction, they could not act as a substitute for the validity of law. Accordingly, I do not entertain for a moment any doubt but that

the conclusion reached in Caffrey is entirely correct, and can see no justifiable basis for doubting or even questioning its authority. I

therefore cannot agree with any suggestion that this principle is one appropriate for review in the future, as has been proposed

elsewhere. In conclusion, therefore, this argument advanced on behalf of the Governor is not, in my view, well founded.

48. Could I perhaps add one further observation on this matter. Presumably, any argument advanced by a respondent on this point,

howsoever phrased, would relate to the personal conduct of the applicant and based thereon it would be submitted that he or she

should be prevented by some principle of law from asserting the suggested illegality of his detention. Such conduct, however, could

only take effect in personam and could not bind the world at large. Let’s suppose a close member of the prisoner’s family, a minor son

and dependant, for example, made a habeas corpus application, could he or she be met with the same point? It is at least strongly

arguable that he could not: one could thus potentially end up with a situation whereby a third party would have the standing to

establish the illegality of a prisoner’s detention, whereas the person himself, by personal conduct, would be prevented from so doing. I

could not accept that such a situation could be countenanced by law, particularly in the context of constitutional liberty.

The Influence of Sweeney v. Governor of Loughlan House Open Centre & Ors [2014] 2 I.R. 732; [2014] 2 I.L.R.M. 401

(“Sweeney”) in this Case:

49. At the date of his conviction for serious drug offences in England, Mr. Sweeney, in accordance with the relevant statutory

provisions then in place, was entitled to automatic release from custody after serving 50% of the imposed sentence, with the balance

to be served under licence in the community. That in the circumstances translated into an incarceration period of eight years. Having

been repatriated under the provisions of the 1995 Act, he was detained in this jurisdiction under a warrant which issued pursuant to

s. 7 of the Act and which specified the term of imprisonment as being one of sixteen years. Having served 50% of that term he

challenged the continuing validity of his detention and the Supreme Court agreed with his submissions. He could not therefore be held

for any period in excess of 50% of the original 16-year term imposed, that is to say 8 years.

50. At the outset it is important to try and identify what Sweeney did not seek to do or to deal with in either the judgment of Murray

J. or that of Clarke J. In particular, it should be noted that the validity of the warrant was not central to the discussion or to either

judgment, as by the date of the Court’s decision the applicant had served the requisite custodial period (para. 38(ii) supra).

Secondly, no application had been made “to adapt” the sentence, so that it was not necessary for the Court to discuss or reach any

conclusion on what might have occurred if such an application had been made. Therefore the incompatibility provisions of ss. 7(5) and

7(6) of the 1995 Act were not explored, albeit for understandable reasons. Thirdly, apart from it being disregarded for the reasons

stated, it would appear that the Court gave no further consideration to what other consequences might follow, under both the

Convention and in legislative terms, from the fact that no effect “could” be given in this jurisdiction to the community licence aspect

of the English decision. Therefore, none of these matters as such were addressed in Sweeney. Accordingly, I reject any submission

that Sweeney is an authority for suggesting that the regime in England, in its structure, is consistent with its counterpart in this

jurisdiction. In other words, a regime which provides for automatic release followed by conditional liberty is not in my view in

conformity with a regime which makes no such provision; further, those provisions which are in place in this jurisdiction cannot, in my

view, be reasonably equated to or directly associated with those of the UK model.

51. Murray J., in his judgment, was of the view that the issues raised centred on what was or should be regarded as the correct

expiry date of the sentence imposed in the United Kingdom. In effect, what form of punishment constitutes “a sentence” for the

purposes of the Convention and, more importantly, for the purposes of the statutory definition of that term in the 1995 Act? Did it, in

the particular circumstances, relate to a term of sixteen years or to the lesser period reflecting only the actual incarceration which

Mr. Sweeney would have had to serve under the laws of the sentencing jurisdiction? The learned trial judge took the view that the

word “sentence” related solely to “deprivation of liberty”, which in turn could only equate to the actual term of imprisonment which

had to be served. He was thus satisfied that such, in the case of Mr. Sweeney, extended only to the eight year period and,

accordingly, after its expiry his continuing detention could not be legally sustained. Consequently, the applicant was entitled to be

released or, if already released, to his unrestricted freedom. In effect, the balance of the aggregate sentence fell away and was not

enforceable under Irish law.

52. An important point to emphasise was the view of the learned judge, expressed on more than one occasion, that it was not legally

possible for the administering state to insist upon a prisoner serving a term of imprisonment in excess of that which had originally been

provided for by the sentencing state (para. 36 supra).

53. Clarke J., in arriving at the same conclusion, analysed the issue in a slightly different way, and did so by considering whether or

not the conditional release period of the sentence could properly be regarded as part of its enforcement, or whether it was governed

by English law as affecting the legal nature and duration of the sentence. If the former, then at least an argument could be made for

suggesting that the remission principles applicable in this jurisdiction would take precedence over the community licence portion of the

sentence and therefore Mr. Sweeney’s detention for a period in excess of eight years might be capable of justification. However, the

learned judge was of the view that given the statutory framework within which the penal regime now operates in the United Kingdom,

the release period could only be regarded as touching upon the legal nature of the sentence and, accordingly, was subject to UK law.

In addition, he was also of the view that the term “sentence” as used in the 1995 Act referred solely to the period of actual

imprisonment (paras. 4.11 and 4.12 of the judgment). Being thus satisfied in such circumstances that Mr. Sweeney could not be

detained in this jurisdiction for any period in excess of that for which he could lawfully have been detained in the United Kingdom, it

followed that only the eight year incarceration period would have to be served in this country. As that period had expired, Mr.

Sweeney’s freedom was guaranteed.

54. It has not been suggested during argument that the decision in Sweeney should be revisited by this Court. In fact the Governor,

with whom the Minister for Justice can be associated, sought to operate its provisions in the instant case by suggesting that the

relevant term of imprisonment set out in the High Court warrant should be regarded as referring to a term of eighteen years and eight

months only, this to reflect the two thirds provision then applying to the offences under the United Kingdom’s law. The appellant

would only therefore seek to detain Mr. O’Farrell for this length of time. To underpin the point, it was suggested that the warrant

even in its original form could be viewed to this effect, a submission which I must say I did not understand. It was also suggested in

the alternative that the power to vary under s. 9 of the 1995 Act was such as to enable the leave Court, and certainly this Court, to

amend the warrant so as to reflect the Governor’s current thinking in this respect.

The Meaning of “Sentence”:

55. As referred to above, the meaning of “sentence” was critical to the Sweeney decision. It is described in the 1995 Act in precisely

the same terms as in the Convention, and is said to mean “…any punishment or measure involving deprivation of liberty…” (emphasis

added). In holding that a punishment or measure could only be a sentence insofar as it related to actual incarceration, the Sweeney

decision equated a sentence solely and exclusively with the deprivation of liberty; indeed it treated the word “sentence” as being

synonymous with the phrase “deprivation of liberty.” The consequences of so doing were stark: there was simply no place for the

community licence obligations, which had to be and were disregarded. Whilst of course I fully respect the decision, it might be said to

reflect quite a narrow view of the concept of a “sentence” which, against the background of an international convention, might have

merited a wider or more general interpretation. Furthermore, the qualifying word “involving” deprivation of liberty does not appear to

have been directly addressed. In any event, this question of “a sentence” is a point to which I will revert again when considering the

adaptation process.

56. Disregarding the observation last made for a moment, there can be no doubting the fact that in the circumstances and by virtue

of Sweeney, the applicant in this case cannot be forced to serve or otherwise be detained in this jurisdiction for any period longer

than the date upon which he would have been entitled to automatic release if he had remained in England; in other words, after

eighteen years and eight months had been served. That inevitable conclusion feeds directly into a central point in this case, which is

that, irrespective of what the correct period may be, the applicant can only be detained in accordance with law: hence the validity of

the High Court warrant is directly in issue.

Is the High Court Warrant Defective?:

57. I do not understand that any of my colleagues who share a similar view to that which I express, or those who have a different

view, including that as to outcome, believe that the warrant is otherwise than defective. I entirely agree.

58. A warrant issued under s. 7 of the 1995 Act (a “s. 7 warrant”) can almost be classified as a sui generis warrant in the sense that

it is designed to cover a number of steps or events not normally associated with the type of warrants which are regularly issued as

part of the criminal justice system. Certainly it is quite different to a search warrant or a remand warrant or to a warrant issued post-

conviction, whereunder the Governor (normally) of a particular institution is authorised to detain a named individual for the purposes

of serving the sentence imposed upon him. A s. 7 warrant has wider import. It authorises the bringing into the State of the sentenced

person from a place outside the state and thereafter the continuing enforcement in this State of the sentence imposed in a foreign

jurisdiction. These are unique features of a s. 7 warrant. However, it must also be noted that even with those features, and subject

only to the question of remission which is not presently relevant, such a warrant, by virtue of s. 7(4) of the 1995 Act, is “otherwise

[to have] the same force and effect as a warrant imposing a sentence following conviction by that court”. Accordingly, given this

provision, and even allowing for the observations as made, it would seem that such a warrant can probably therefore be regarded in a

general sense as being analogous to a detention warrant issued post-conviction (R. v. Governor of Lewes Prison Ex p. Doyle [1917] 2

K.B. 254; The State (Dickenson) v. Kelly [1964] I.R. 73).

59. I feel there can be no argument but that such a warrant must ex facie, or at least when read in conjunction with accompanying

or associated documents, specify not only for the Governor concerned, but also for the sentenced person, the term of imprisonment

which the authorising court had previously imposed on that person. The term as recorded must accurately reflect what was handed

down by the sentencing court. It is a fundamental requirement upon which the legal authority to detain a convicted person in custody

is based that the jailer should know precisely the term of the sentence imposed and the date of its commencement. There is no room

for genuine ambiguity or uncertainty in either regard. It is equally essential that the prisoner should likewise have access to this

information. Such a requirement seems so obvious as not to require authority, but if authority is needed, there is much of it.

60. In his judgment in Carroll v. Governor of Mountjoy Prison [2005] 3 I.R. 292, Peart J. reviewed some of the earlier authorities and

stated at 303:-

“34 A fundamental requirement for any authority to detain a person in custody is that the person detaining and the

person detained should know precisely the duration of such detention…

35 As stated by Haugh J. in The State (Caddle) v. Judge McCarthy & Ors [1957] I.R. 359 at p. 365:-

‘Those warrants seem to possess a twofold purpose: when a sentenced person is still at liberty

they enable the Court, through the police, to apprehend (and detain by force, if necessary) such

person … Their second function is to inform the governor of the identity of the prisoner, the

offence of which he has been convicted, and the nature and duration of the sentence.’

36 In the same case, Kingsmill Moore J., while concurring with the judgment delivered in that case by O’Daly J., took

the opportunity to say the following at p. 379 in relation to the need for precision in the warrant as to the duration

of sentence:-

‘It seems to me that an authority to keep a man in prison must state with precision and without

possible ambiguity the duration of the imprisonment, and that such duration and any other

incident of the imprisonment stated in the warrant must correspond with the sentence legally

imposed. I am not satisfied that the warrants in this case answer these requirements….’

37 The topic is referred to in Prison Law by Paul Anthony McDermott, albeit in the context of an order of transfer of

a prisoner by the Minister for Justice under s. 17 of the Criminal Justice Administration Act 1914, where the author

states the following at para. 11–10:-

‘No reference to period of detention. Since the order of transfer is the authority under which the

governor of the receiving prison detains the transferred person, it should show on its face or by

reference to some other document accompanying it the period for which the prisoner is to be

detained. A failure to do this will mean that the transferred prisoner is not being lawfully detained.’

Mr. McDermott refers also to the judgment of Murnaghan J. in The State (Holden) v. Governor of Portlaoise Prison

reported sub. nom. The State (Dickinson) v. Kelly [1964] I.R. 73 at p. 80 – again in the context of the ministerial

transfer of prison order – where the importance is stressed of specifying on the face of the document, or by

reference to some accompanying document, the period for which a person is to be detained.”

61. In J. O'G. v. Governor of Cork Prison [2007] 2 I.R. 203, the same judge said, inter alia, that:-

“30 A person detained is entitled to know from the document detaining him why and for how long he is being

detained. How else could he properly take legal advice as to the legality of his detention? It must be recalled that a

person at all times during his detention retains all his rights to make a complaint that the detention is unlawful. It

cannot be acceptable to say, such as in the present case, that the infelicity with which the warrant has been

prepared does not matter because after all the applicant was in court and accepted that he breached the order and

knew that he was being punished for that by a period of imprisonment of four weeks.

31 This warrant lacks the integrity worthy of a document whose effect is to authorise the deprivation of a person’s

liberty. On this ground alone I am not prepared to regard this warrant as a sufficient authority for his detention.”

See also Mullen v. Governor of Midlands Prison [2014] I.E.C.A. 26 (16th December, 2014). Subject to the following observation, which

is added for clarity only, I respectfully agree with the review and with the authorities cited in Carroll and with these passages in J.

O’G.

62. The reference in the cases above mentioned to the “duration of the sentence” must of course be understood as referring to the

term of imprisonment as handed down by the trial court. That is what both the Governor and the prisoner need to know, as well as

being essential to the court on any Article 40 inquiry. The actual period of incarceration served will of course take into account any

remission which the prisoner may be entitled to on foot of the Prison Rules. This, however, was always considered a matter of

administration and thus fell to be determined by the Governor, who was presumed to know the regulations and who on request could

calculate an expected release date on the basis of full remission earned. For these reasons it was never a requirement that a release

date be specified in the warrant. What was essential and what the case law demanded was that the term so imposed would be

specified with no uncertainty, as would be the correct date of its commencement.

63. At a more general level, the requirements for a valid warrant were also discussed by Denham C.J. in giving the judgment of the

Supreme Court in G.E. v. Governor of Cloverhill Prison [2011] I.E.S.C. 41 (“G.E.”). Although the warrant in that case had been issued

under s. 5 of the Immigration Act 2003, the statement of principle by the Chief Justice applies with equal force to all warrants. At

para. 31 she said:-

“A document, such as in issue here, should contain clear information on its face as to the basis of its jurisdiction.

This information is required so that it can be available to, for example, (a) the person in custody, such as the

appellant; (b) the Governor of the prison, or any other person, who is holding a person in custody; and (c) the

Court which is requested in inquire into the custody pursuant to Article 40 of the Constitution.”

See also Joyce v. the Governor of the Dóchas Centre [2012] 2 I.R. 666, where Hogan J. released the convicted applicant by reason

of the failure of the committal warrant to disclose ex facie the offence of which she had been convicted.

64. A warrant should not be vague, uncertain or cause confusion. It must of course be accurate and, in a case such as the instant

one, should reflect the true nature and duration of the sentence. Where an adaptation order has been granted, certain adjustments

may have to be made. That is not the case here. I cannot see how a warrant specifying a term of twenty eight years can be said to

reflect a term of eighteen years and eight months, which the Governor says is the correct term: it cannot be so regarded. In the

absence of extraneous documentation capable of being read as explaining this difference, the warrant in my view is flawed in a

fundamental way and thus is seriously invalid. No such documentation exists. In addition, another matter of deep concern is

demonstrably apparent from the draft “corrected” warrant which was exhibited as part of the section 9 application and which the

appellant seeks to have substituted for that which was issued by the High Court on the 27th July, 2006. Under the heading “Sentence

of Imprisonment Imposed in the Sentencing State”, is inserted:

“(a) Eighteen (18) years and eight (8) months imprisonment for the offence at (i) above

(b) Eight years imprisonment, concurrent to the sentence at (a), for the offences at (ii) and (iii) above.”

The first description, at subparagraph (a), without explanation, is entirely false and fundamentally misstate the true and accurate

position. It would have to be rejected even on that basis. In any event it follows from what I have previously stated that in my view

the existing warrant, in its current form, cannot establish the necessary basis to withstand an Article 40 inquiry into the legality of

Mr. O’Farrell’s ongoing detention.

65. Leaving aside for a moment the possible consequences of the warrant’s invalidity, the question now arises as to whether the

defects outlined can be cured, for certainly they cannot be overlooked. I could not for a moment regard them as inconsequential or

without effect, a point I will return to in more detail when dealing with the Cross Appeal (paras. 101-104 infra). I am of course

speaking specifically about the duration point, as I am satisfied that the High Court was correct in believing that it had the power

under s. 9 of the 1995 Act to vary the warrant by substituting the correct start date of the prison term. Even though the appellant,

at least at one stage, submitted that the High Court, and as would follow this Court, had inherent jurisdiction to effect the necessary

variation, that avenue, very properly in my view, has not now been pursued. The power of correction, if the same should exist, is to

be found only within the provisions of the said s. 9 of the Act.

66. However, before turning to that issue I would like to go back to one aspect of the adaptation process with which I wish to deal.

Is the Imposed Sentence Incompatible with Irish Law?:

67. At paras. 37-44 of this judgment, I have set out the relevant ingredients of the penal system in the United Kingdom, and also

those which pertain in this jurisdiction. Considering the former, I have had due regard for the relevant statutory provisions, as well as

how Lord Bingham, in Regina (Smith) v. Parole Board (No 2), described the nature of a sentence which is subject to the automatic

release provision followed by release on community licence. It seems to me that such a sentence for English law purposes cannot be

properly described as one consisting only of the incarceration aspect of it. To do so is a direct contradiction of statute law and Lord

Bingham’s description of it being “… in reality a composite package” (para. 41 supra). The package, even if in two parts and with two

elements, must be considered as one, as a unitary sentence or punishment imposed on the convicted person by a court of competent

jurisdiction. I would have little doubt but that a sentence involving a jail term only is quite different to one involving such combined

restrictions on personal liberty, and would be so regarded by both the judiciary and Parliament alike.

68. Such sentences, apart from the judicial imposition of the original term, have been structured in a particular way by Parliament for

specific reasons, which at a general level are in part deducible from the role which the Parole Board plays in any attempted revocation

of the “community” licence. That structure, at the level of principle, which is not, as such, punitively driven, is unrelated to the

conduct or behaviour of the prisoner during his prison term or to any other aspect of that term’s enforcement or management. To

that extent it therefore differs from incarceration per se. However, both merge to form the imposed sentence. In my view, therefore,

the licence aspect cannot but be regarded as forming an essential part of the “legal nature” of the sentence, as that term is

understood in both the Convention and the 1995 Act. Clarke J. so held in Sweeney and I agree.

69. The process of adaptation of a sentence, such as is permitted by and referred to in sections 7(5) and 7(6) of the 1995 Act,

arises only in the context of a sentence which by its legal nature or duration is “incompatible with the law of the state”. Article 10(2)

of the Convention uses the same language: “incompatible with the law of the administering State”. What, then, is meant by

‘incompatibility’ in this context? The term is not defined in either the Convention or the Act, nor is it mentioned in the Explanatory

Report to the Convention. As generally understood, the term denotes an inconsistency; an inability to coexist with something else. It

means that when the measures in question are put side by side, they are substantially irreconcilable. Used in this way and noting the

legal context involved, the term strongly suggests that a sentence which could not validly be imposed by or exist under Irish law

should be described as incompatible with the law of this State; though lawful in the sentencing state, the sentence imposed would in

such circumstances be incongruous within the legal regime of the administering state. It is as a result of any such inconsistency with

Irish law that the adaptation provisions become relevant.

70. This phrase “legal nature” is of wide meaning and evidently, even without the express provision of s. 7(10) of the 1995 Act, is

distinct from duration. It was considered in Caffrey, where the applicant had been given, in the United Kingdom, a mandatory life

sentence for murder. Such a sentence has two distinct elements to it in that jurisdiction. The first, sometimes called the tariff,

requires the judge to nominate a minimum period which must be served by way of punishment and general deterrence. Once that has

expired any further detention is justified on preventative grounds, that is, on grounds of public protection. This aspect of the life

sentence was, in the opinion of Fennelly J. (with whom Murray J. agreed), related to “the legal nature” of the sentence. It seems to

me that similar considerations apply between that and the community licence aspect of the applicant’s sentence. In relation to the

mandatory life sentence for murder, the tariff represents the general punitive or retributive aspect of the sentence, with further

detention justified on preventative grounds. In respect of the unitary sentence at issue in the present case, the period of

incarceration similarly serves the primary punitive function, with the period of release on community licence satisfying an essentially

rehabilitative purpose. I am therefore in no doubt but that such falls within the “legal nature” of the sentence imposed. This was in

any event the conclusion of the Clarke J. in Sweeney (para. 53 supra). Consequently, each signature state is internationally and,

through its domestic laws, nationally bound to uphold the sentence as so structured unless the same is incompatible with the laws of

its own state. That in turn raises two questions: firstly, how is that to be determined, and, secondly, if established, how, if at all, can

it be addressed?

71. It may be asked whether Article 50.1 of the Constitution can shed any light on the meaning of incompatibility. That provision

reads:

“Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in

Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be

of full force and effect until the same or any of them shall have been repealed or amended by enactment of the

Oireachtas.”

Of course it is acknowledged that, as adverted to by Walsh J. in his judgment in State (Sheerin) v. Kennedy and Others [1966] IR 379

at p. 385, the term “inconsistent” in Article 50.1, which may in general speech be regarded as synonymous with other terms

appearing in the Constitution, such as “repugnant” in Articles 15 and 26, conveys a technical meaning in the context of that Article.

The learned judge, in explaining the provision, said: “[t]he situation which is being examined in that Article is whether a law which is

valid on a certain date may cease to have effect because, notwithstanding its initial and original validity, it is inconsistent with the

provisions of the Constitution.” Nothing more informative comes from that decision. Indeed, the situation remains very much the same

from a perusal of subsequent cases which, despite the observations of Walsh J., have largely held that the term “inconsistent” in

Article 50.1 may be regarded as synonymous with the term “incompatible.”

72. A single reference will illustrate this point. In Murphy v. The Attorney General [1982] I.R. 241 Henchy J. stated at p. 306 that the

issue to be determined when assessing a law under Article 50.1 is “whether, when the impugned provision is set beside the

Constitution, or some particular part of it, there is disclosed an inconsistency.” In substance therefore very little assistance is

obtained from this source. Consequently I think that first principles apply.

73. At that level it seems to me that, at its outermost limit, it is axiomatic that a sentence expressly prohibited by the Constitution or

by statute would be incompatible with Irish law. Article 15.5.2° of the Constitution, as inserted by the Twenty-first Amendment of the

Constitution Act 2001, demonstrates the point in question: it provides that the Oireachtas shall not enact any law providing for the

imposition of the death penalty. Thus it is clear that on any reading of that provision, capital punishment is incompatible with Irish

law. The same would also have to be true of a sentence which is expressly prohibited by statute. Penal servitude and hard labour

were abolished by section 11 of the Criminal Law Act 1997, with section 11(1) providing that “[n]o person shall be sentenced by a

court to penal servitude.” Thus, notwithstanding the fact that some forms of sentence in other Contracting States may involve a

requirement to do hard labour, such a sentence would again be clearly inconsistent with Irish law and would have to be stood down.

74. As the facts of this case show, there exist further forms of sentences in other Contracting States which, although not expressly

prohibited in this jurisdiction, are nonetheless not known to Irish law. The power of a judge to impose a lawful sentence, either by its

duration or nature, must derive from due authority, which in almost all cases will have its origin either in statute or in the common

law. That being so, the difference between a statutory provision prohibiting the imposition of a particular type or length of a

sentence, and the absence of lawful authority to impose the same sentence is, perhaps, a difference without meaning. In the first

situation the judge considers the scope of the restriction to see if it covers what might be the intended sentence, whereas with the

latter, he seeks to establish the existence of a lawful basis upon which he might rest what he envisages. Quite evidently, therefore,

where there is no enabling power to that effect, it can confidently be said that a sentence with no lawful basis would be inconsistent

with Irish law. It can thus be seen that there is no meaningful distinction is this regard between, on the one hand, a sentence

expressly prohibited under Irish law and, on the other, a sentence which is not known to Irish law and which a judge could not

lawfully impose for want of authority to do so. In either case the sentence so described would be incompatible with Irish law, within

the meaning of that term generally and also as referenced in both the 1995 Act and the Convention.

75. Based on this analysis, and having due regard to the composite structure of the imposed sentence, both aspects of which must

be recognised, I am entirely satisfied that the sentence handed down to Mr. O’Farrell is incompatible with the laws of this State. As

previously outlined, there is no provision in our national laws for accommodating, facilitating, implementing or otherwise reflecting the

second stage of the unitary sentence imposed by the English court. I am fortified in this regard by what the Court did in Sweeney,

even if determined on a different basis: simply to have to disregard the licence aspect of the sentence is self evidence of its

inconsistency with Irish law. I therefore have no doubt as to this conclusion.

Obiter Remarks

76. It is of course fully acknowledged that no application was made to the Court under s. 7(5) or (6) of the 1995 Act to have the

imposed sentence adapted under the provisions of these subsections. It is also accepted that any such application would have to

form part of the initial application made to the High Court for the issue of a s. 7 warrant. Not having been done at that time, it is now

too late to contemplate it: there is simply no longer any scope for its use.

77. Although in such circumstances the issue does not strictly arise, nonetheless I would have considerable doubt that the Court,

even had such an application been made, could have “adapted” the structure of the English sentence in such a way, firstly, as to

preserve the integrity of the underlying regime and comply with the provisions inter alia of these subsections, and, secondly and more

importantly, to put in place a result which could, with any legal reality, be said to correspond, as far as practicable, to the legal

nature of the imposed sentence (s. 7(6)(a) of the 1995 Act). The 1995 Act does not require the adapted sentence to be a mirror-

image of the original one – this is inherent in the concept of adaptation – but in my view even adapting the sentence “as far as

practicable” is not sufficient, if the sentence as adapted does not in any meaningful way correspond with the legal nature of the

sentence as originally imposed. To ‘correspond’ denotes a particularly close degree of similarity or equivalence; thus, if the adapted

sentence could not be said to bear any real correspondence with that imposed in the sentencing state, then notwithstanding that the

adapted sentence is as close in legal nature to the original as could be imposed under Irish law, I take the view that the adaptation

process cannot be utilised at all.

78. Consider, for example, a sentence of capital punishment. This is of course an extreme example but it is chosen for this purpose to

illustrate the possibility that there are sentences of a type which cannot be adapted to a sentence imposable under Irish law which

could be said to correspond in any way with the legal nature of the original. Several Contracting States to the Convention, including

the United States of America and Japan, retain the use of the death penalty. Overlooking for a moment the unlikelihood of consent to

transfer by the sentencing state given the constitutional ban on the use of the death penalty in this jurisdiction, in my view it is

impossible, as a matter of principle, to see how any adapted sentence could be crafted which would in any way correspond with or

reflect the legal nature of the sentence of capital punishment so imposed. Even adapted to the greatest permissible degree under

Irish law, or to use the phraseology “as far as practicable”, the adapted sentence could not respect the legal nature of the original

sentence and thus no adaptation would be possible.

79. Noting the international background to the 1995 Act, and the obligation on participating states to accord each other the widest

possible co-operation in implementing the provisions of the Convention, I would be prepared to adopt any recognisable interpretative

approach to achieve the desired end, if the same was constitutionally plausible and legally possible, but not in such a manner as to

breach the contra legem rule. That being so, it seems to me that a major difficulty arises with the community aspect of the

sentence. In my view, considering how such sentences are regarded in England, it is not legally possible, for section 7 purposes, to

simply ignore that aspect of the sentence. It forms a critical part in the overall structure, without which it is highly unlikely that

automatic release would have been provided for at all, or that it would be available after 50% of the term or, as in the case of Mr.

O’Farrell, 75% of the term has been served. Thus, it is a key aspect of the overall punishment or sanction and whilst it may be driven

by considerations not directly based on punishment or deterrence, but rather on social rehabilitation, nonetheless it remains a crucial

element.

80. As is common case, it is not possible in accordance with our domestic law to give any effect to such provision. This remains the

situation whether an adaptation order has or has not been made. I therefore have grave doubts that even if the Minister in the

original application sought relief under ss. 7(5)(a) and (6) of the 1995 Act, that it would have been possible for the court to craft an

order to reflect what in my view are the essential elements of the sentence. See also what Laffoy J. had to say on this point at

paras. 52 and 53 of her judgment in this case.

81. It must also be remembered that the power to adapt applies to the sentence, not to the warrant. Whilst no doubt conferring a

wide jurisdiction, the exercise is not without limit, as the command in s. 7(6)(a) of the 1995 Act shows. It would not be possible in my

view to convert the imposed sentence into one that effectively captures the core elements of the sanction as prescribed by the

sentencing court. The essentials of the sentence must be preserved. If radically different, the process becomes ineffective and will

not sustain the nucleus of the international scheme or the cohesion of the original sentence. The approach of the court when asked

to adapt must therefore have regard to this fundamental driver of the overall project.

82. In the instant case, how could one in any way reflect the community licence aspect of the sentence? I fear one would have great

difficulty in doing so short of embarking on an exercise which appears strikingly close to legislating. In making these observations I am

doing no more than simply pointing out the obvious, namely that the UK regime has developed in a fundamentally different way to our

system and so stands at the present time.

83. Finally, may I say that with the radical differentiation which now exists between the respective penal systems as operating in

England and in Ireland, it may not be possible, within the parameters as outlined, to achieve any feasible outcome following the

adaptation process which could sustain a credible challenge, even with a court exercising the greatest permitted degree of flexibility.

However, I recognise that these observations are obiter and will have to await definitive decision, if and when such an issue should

arise in any given case. Perhaps in the intervening period, some re-assessment or re-evaluation is called for.

Power to Vary:

84. Under s. 9 of the 1995 Act the Minister, at any time, may apply to the High Court to revoke or vary the s. 7 warrant or any of its

provisions. The purpose of both the application for and the granting of such an order is to give effect to the provisions of the

Convention. The Court is empowered to make whatever order it considers appropriate.

85. Following the delivery of the main judgment in August, 2014, the learned judge, who alluded to this provision in that judgment,

continued the Article 40 inquiry so as to permit the Minister for Justice to issue a motion under the section if she so wished. She did

so and Hogan J., having considered the application, delivered a second judgment solely on this issue on the 11th September, 2014.

For the reasons therein set out, he stated that he did have the power under the section to substitute the correct commencement

date of the sentence, but did not have the power to alter the period of the sentence by substituting, for the term of twenty eight

years, a term of eighteen years and eight months, and for the lesser sentences, correspondingly reduced terms (see para. 64 supra).

He thus declined to do so. Having reached that conclusion and in light of his earlier decision regarding the invalidity of the warrant, he

directed the immediate release of Mr. O’Farrell and the other applicants named above.

86. As I have mentioned earlier, in the scheme of the 1995 Act a sharp distinction was made by the Oireachtas between the powers

conferred by s. 7, on the one hand, and by s. 9, on the other. The former, in subs. (5) and (6), relate to the sentence. The latter

deals with the warrant. Again, the former speaks of the power “to adapt,” whereas the latter refers to the power “to revoke or vary.”

Whilst no question of revocation arises in this case, it might occur in a pardon, amnesty or commutation situation; it might also be

appropriate as a result of any judicial review by the sentencing state of the conviction and/or sentence. Likewise, for example, if

parliament intervened in such a way that a particular cohort of prisoners should be unconditionally released after a certain time period

and that period had already been served (see s. 7(8) of the 1995 Act). These are but illustrations. In any event, the point does not

arise. What concerns us, however, is what the power “to vary” means when seen in the contextual setting of the Act as a whole,

and in particular s. 7 thereof.

87. “To vary” connotes a “change” or an “alteration” of some term or provision which does not go to the essence of the subject

matter itself. The analogy which Hogan J drew with Order 28, rule 11 of the Rules (“the slip rule”) bears a reasonable relationship to

the kind of meaning and intended use of the power given in s. 9 of the 1995 Act. I am satisfied that the distinction between the

power to adapt and the power to vary must be maintained. These terms, as the learned trial judge said, are not interchangeable and

are not intended to have the same meaning. The conditions for their exercise are individual to each other, not simply in respect of

timing but also relative to the correspondence obligation and the non-aggravation and capping requirements of s. 7(5) and (6) of the

Act. The contrast between both should not therefore be judicially collapsed. Evidently the power to adapt would include the power to

vary, but the converse is not the case. The breadth of what the Governor seeks from this Court under the s. 9 application can be

instantly seen from a direct comparison between the issued s. 7 warrant (para. 8 supra) and the suggested amended version which I

have referred to above (para. 64 supra). It entails a fundamental alteration to the most critical command contained in the warrant:

not only that, but in reality it also seeks, by way of judicial declaration, to have declared that the courts of trial and appeal did not

impose a 28-year sentence but rather a term of 18 years and 8 months. This is not simply a correction to the warrant: it amounts to

a complete substitution of the term. This to me cannot be achieved under the guise of a variation. I therefore cannot accept that

such a provision can be utilised in the most far-reaching way as the appellant suggests. Accordingly, the defects in the original

warrant as above outlined cannot be cured in this manner.

88. If such result is at all attainable, involving as it does the discarding of an aspect of the aggregate sentence, it could only possibly

come about via an adaptation order made under s. 7 of the 1995 Act. As I understand it, all of my colleagues who form the majority

of the Court believe that such is the only possible avenue to this end. That the imposed sentence is in its entirety incompatible with

Irish law is scarcely in doubt: (paras. 67-75 supra) indeed it is inherent from and formed an essential part of the Sweeney judgment.

Therefore any change as radical as that proposed could only conceivably emerge from a s. 7(5) and (6) application. However, for the

reasons above given, I firmly believe that even if such an application had been made, the suggested result was not legally achievable.

The Consequences of the Defect:

89. There is no doubt but that the only lawful authority upon which Mr. O’Farrell could be detained in this jurisdiction rests on the s. 7

warrant. For the above reasons, I am satisfied that it suffers from a substantial infirmity which cannot be regarded otherwise than in

a manner commensurate with its importance. Consequently, in my view it is invalid. The majority of the Court so agree and the same

conclusion is obviously inherent in the judgments of the other members of the Court. This inescapably follows because if the

established defects did not in the first place merit a release order then there would have been no necessity to consider the

potentially curative provisions of s. 9. Therefore, the warrant cannot be relied upon to further Mr. O’Farrell’s incarceration.

90. In coming to this conclusion I am not to be taken as expressing any view as to what other consequences (if any) such a

conclusion leads to: I am satisfied that it can no longer be relied upon as a legal basis for detaining Mr. O’Farrell and that is the

extent of my finding. There has been no debate in this case on any wider or further consequences, if such should exist. The warrant,

disregarding the start date, was issued in terms which reflected what was then regarded as the correct legal position. That continues

to be so in England in respect of the committal warrant, but following the decision of this Court in Sweeney, not so in this jurisdiction

for the s. 7 warrant. The invalidity identified in the instant warrant is intrinsically linked to that decision. What further consequences

may exist will be a matter for another day.

91. On a related matter I should also say that the consequential effect of my conclusion in this case must also await further debate.

The point which I refer to is this: under Article 8 of the Convention, the “taking into charge” of a prisoner by the administering state

has the effect of “suspending” the further enforcement of the sentence in the transferring state. It is only when the enforcement of

the sentence has been completed that the residual power of the sentencing state, inherent in the suspending measure, is spent.

Provision is made by which that information is exchanged between the States involved. If there are domestic measures in either or

both jurisdictions which reflect this provision, it remains to be seen which exactly these are; likewise with how either State will view

the situation resulting from this judgment.

The Cross Appeal:

92. The applicant has cross-appealed one aspect of Hogan J.’s judgment of the 26th August, 2014, wherein the learned judge held

that as the defects in the warrant in the present case fell into an intermediate category of error, he would adjourn the Article

40.4.2° application for a short time to allow the Minister to apply to the High Court under s. 9(1)(b) of the 1995 Act to have the

terms of the existing warrant varied to reflect the correct duration of the sentence. Accordingly, Hogan J. did not at that time order

the release of the applicant from custody. It was not until this issue had been determined in his judgment of the 11th September,

2014, that Hogan J. directed the release of the applicant in accordance with Article 40.4.2°. The applicant submits that the learned

judge fell into error in declining to order his release from custody upon being satisfied that the warrant was invalid on the 26th

August, 2014.

93. Article 40.4.2° of the Constitution provides as follows:

“Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such

person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is

made shall forthwith enquire into the said complaint and may order the person in whose custody such person is

detained to produce the body of such person before the High Court on a named day and to certify in writing the

grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court

and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the

release of such person from such detention unless satisfied that he is being detained in accordance with the law.”

(emphasis added)

As is therefore clear, it is the current detention of an applicant which is being inquired into.

94. With the rarest of exceptions, in fact with no exception as such that I am aware of (see para. 97 infra), the position is that a

complainant whose detention is found not to be in accordance with law is to be released immediately: otherwise this mandatory

constitutional bedrock is, in effect, being neutralised. Finlay C.J., in State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R.

550 at 567, stated that:

“I am satisfied that the provisions of Article 40 which set out the procedure for an inquiry of this kind and which

provide that unless the High Court is clearly satisfied that the prosecutor is being legally detained, it must order his

immediate release, that this procedure was complied with by Egan J. As a result Trimbole was in law released from

custody. Whilst it is persuasive to say that any ordinary appellate jurisdiction includes any powers to make it

effective, so to constitute that power to order a stay in this case would be inconsistent with the Constitution. I am

satisfied from the report of The State (Browne) v. Feran [1967] I.R. 147 that the power of this Court to make an

order for re-arrest clearly must be confined to a time when this Court has decided that the High Court decision is

incorrect. There is no question of this Court ordering rearrest to allow the Court to decide an issue.”

Further, at p. 570 of the Report it is stated that:

“For reasons associated with his physical health the prosecutor was not in court at the time of the making of the

order by Egan J. and was not, therefore, immediately released. Application was then made on behalf of the

respondent for a stay on the order of release but this Court ruled that having regard to the express obligation

imposed by Article 40, s. 4, sub-s. 2 upon the High Court, unless satisfied as to the legality of the detention of a

person seeking an enquiry under that Article to order his release, that it would be inconsistent with the Constitution

for this Court to exercise any right to stay such an order and, therefore, refused the application and the prosecutor

was then released from custody.”

These are but examples; there are several others to the same effect, such as The State (Royle) v. Kelly [1974] I.R. 259, per Henchy

J at p. 269 of the report.

95. It is settled law that that no stay can be put in place on an inquiry under Article 40.4.2°. Per Walsh J. in The State (Browne) v.

Feran [1967] I.R. 147:

“All successful complaints or claims are followed by a court order implementing the decision which upholds the

complaint or claim. Undoubtedly these constitutional provisions do not permit any qualification or stay upon the

order for release, but that is something which does not justify writing in a provision to the effect that the decision

on the question of the lawfulness of the detention cannot be the subject of an appeal.” (p. 166 of the report)

96. A more recent decision on whether the High Court could place a stay upon the order for release under Article 40.4.2° of the

Constitution is that in F.X. v. Clinical Director of Central Mental Hospital [2014] 1 I.R. 280, which coincidentally is also a case

involving a cross-appeal against a stay on an order for release made by Hogan J. in the High Court. In that case Denham C.J., giving

judgment for the Court, concluded that “[t]here is no provision in the Constitution for a stay. Consequently, any order, such as was

made in N. v. HSE, is made in the process of controlling the release, for the purpose of protecting the person who is incapable of

protecting themselves.” However, it should be pointed out that by the time the judgment was delivered, no issue of habeas corpus

strictly speaking arose, and therefore of course neither could any issue of a stay.

97. Notwithstanding that the default position in a successful Article 40.4.2° application is that of immediate release, there may be

some exceptional circumstances in which the Court will depart from this general rule. In N v. Health Service Executive [2006] 4 I.R.

374, referenced in the judgment of Denham C.J., above, Murray C.J. stated that:

“A successful application pursuant to Article 40.4 concerning an unlawful detention would normally lead to an order

for the release of the person concerned from the unlawful detention with no further order being necessary. In this

case there are special circumstances, namely the welfare of an infant of tender years, to be taken into account

when determining the manner in which effect may be given to the order of this court pursuant to Article 40.” (p.

470 of the report)

98. On the facts of the case, Murray C.J. concluded that:

“In my view the court has jurisdiction, in the circumstances of a case such as this, involving as it does a minor of

very tender age, to make ancillary or interim orders concerning the immediate custody of such infant which are

necessary in order to protect her rights and welfare pending effect being given to the substantive order of the

court.” (p. 471 of the report)

Whilst the decision of Murray J. can be regarded as an exercise of the parens patriae jurisdiction, it can also be seen as the

implementation of the constitutional obligation on the courts to vindicate, as far as practicable, the welfare and personal rights of a

child.

99. Thus the situation may be summarised as follows. The default position upon a finding that a complainant under Article 40.4.2° is

not being detained in accordance with law is that the High Court should order the immediate release of that complainant. It is

established law that there is no provision in the Constitution for a stay on such an order, or for a deferral of the person’s release.

However, there may be special circumstances, such as those outlined by Murray C.J. in N v. HSE, in which the Court may need to

make ancillary or interim orders as part of an orderly release process so as to protect the rights of the Article 40.4.2° complainant

pending the making or implementation of the substantive order.

100. In declining to order the respondents’ immediate release the most critical aspect of the trial judge’s reasoning was that based on

a finding that the warrant defect should be classified as intermediate, that is somewhere between “harmless errors” (see p. 136 of

the report (O’Higgins C.J.) in State (McDonagh) v. Frawley [1978] I.R. 131) and obviously “fundamental errors” (Joyce and G.E, para.

63 supra). In addition, it is true that he also referred to the international aspect of the Convention which underpins the domestic

legislation, and to the mutuality of interstate cooperation in this area of the criminal justice system. However, the essential

justification offered was the suggested “intermediate” classification; also but to a lesser extent he was satisfied that, in pursuing the

course which he did, he was following, by analogy, the approach adopted by Baker J. in Miller v. Governor of Midlands Prison [2014]

I.E.H.C. 176 (“Miller”).

101. With the utmost respect to the learned judge, whose breadth and scope of constitutional knowledge I wish to acknowledge, I

must differ from him in the decision which he arrived at on this aspect of the case. Firstly, I am not aware of any line of authority so

classifying defects in a committal or detention warrant, and I doubt the utility of such an exercise. Secondly, and of more

significance, is what appears to be the situation, namely, that the defect in the warrant seems to have a different classification for

different purposes: intermediate so as to continue the inquiry, whilst at the same time sufficiently serious, if un-remedied, as to

render the prisoner’s detention incompatible with law. Thirdly, it seems quite clear that the legality of Mr. O’Farrell’s detention had

been established at the end of the first hearing: certainly it does not appear that any further evidence or submissions were made on

that issue thereafter. Accordingly, the warrant was not any more or less defective after the second hearing than it was at the

conclusion of the first. In any event, Hogan J. himself so confirmed at para. 43 of the first judgment, where he said:-

“In the event, however, that no such order is made varying the terms of the s. 7 warrant, then under those

circumstances this Court would have no option but to order the release of the applicant.”

It is thus therefore beyond doubt but that the inquiry as to the current legality of the respondents’ detention had concluded at that

point. Fourthly, the stated purpose of the adjournment was to afford the Minister an opportunity of trying to rectify that illegality if it

was possible to do so. Fifthly, the move under s. 9 of the 1995 Act was by a different party in different although admittedly related

plenary proceedings. Therefore, the rather ill-defined power to retroactively validate a defective warrant in habeas corpus

proceedings would be very difficult to apply; in fact, given the nature of the established defect, such recourse would in any event

have been inappropriate. Finally, no discussion regarding the classification of defects took place in Miller, where the issue was

whether other documents could be joined with the warrant in determining the legality of the applicant’s detention. Furthermore, the

learned judge delivered her final judgment after an overnight consideration of the case.

102. In these circumstances, in the face of established illegality of a fundamental nature, I believe that the constitutional requirement

of releasing the respondent at the earliest date possible should have prevailed. Article 40.4.2° of the Constitution does not envisage

the making of any stay or stay-like order where illegality of this nature is established. In addition, this was not a case where it was

necessary to phase, stagger or otherwise gradually release a vulnerable Article 40.4.2° applicant so as to safeguard his personal

welfare or other rights. Accordingly, I take the view that the learned trial judge should have ordered the immediate release of the

applicant as and from the 26th August, 2014.

103. A final word: I fear that in the debate some confusion exists between what type of illegality will give rise to a release order, on

the one hand, and the obligation on the Court to order immediate release if such threshold has been established, on the other. With

regard to the former, there are many judgments dealing at a specific level with the individual defects of that case but two decisions

in particular have addressed this point at a more general level. In The State (Royle) v. Kelly, Walsh J. felt that the irregularities

complained of would have to be such as to invalidate an essential step leading to the prisoner’s conviction, or otherwise go to the

jurisdictional basis of the trial. Henchy J. was of the view that release should be ordered, but only if the detention lacked the

fundamental legal attributes required under the Constitution to validate one’s incarceration. In State (McDonagh) v. Frawley,

O’Higgins C.J. suggested that to successfully invoke Article 40 there must be such a default of fundamental requirements that the

detention is wanting in due process of law. In all probability there is no difference in substance between any of these expressions.

That exercise however is entirely complete once the Court is satisfied that these requirements have been met, or not, as the case

may be. If established, then, subject to the very occasional exception mentioned above, immediate release must in my view follow.

Accordingly, this distinction is important to keep in mind and will help to avoid confusion if adhered to.

104. In conclusion, for the above reasons, I would dismiss the appeal and allow the cross-appeal on the issue as identified.