Supreme Court holds detention warrants void ab initio due to jurisdictional defects in Transfer of Sentenced Persons Acts.

THE SUPREME COURT

[Appeal Nos: 429/2014,

427/2014,

430/2014]

Denham C.J.

O’Donnell J.

Clarke J.

McKechnie 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: 2014/1062SS,

2014/1063SS,

2014/1064SS]

Between/

Fintan Paul O’Farrell; Michael Christopher McDonald; Declan John Rafferty

Applicants/Respondents

and

The Governor of Portlaoise Prison

Respondent/Appellant

Judgment of Mr. Justice John MacMenamin dated the 12th day of July, 2016.

Introduction

1. On the 19th June, 2014, the High Court (Hogan J.) directed an inquiry into the legality of the respondents’ detention in Portlaoise

Prison.

2. Thirteen years earlier, in the year 2002, all three respondents pleaded guilty before the English courts to terrorist offences. They

were sentenced to terms of imprisonment of 30 years, later reduced on appeal to 28 years duration. They commenced serving their

prison terms in England. In 2006, they availed of the Transfer of Sentenced Persons Acts, 1995 to 1997 (“the Acts”). These two

statutes were enacted by the Oireachtas to allow Irish prisoners in other jurisdictions to be transferred to serve out their sentences

in Irish prisons. An application was made to the High Court in 2006 for warrants to allow each respondent to be transferred to custody

in Ireland, and, thereafter, to be detained in Portlaoise Prison to serve the balance of their sentences.

3. The application to the High Court on the 19th June, 2014 was accompanied by a challenge to the constitutionality of s.7 of the

Transfer of Sentenced Persons Acts, 1995 to 1997. However, in light of the conclusions which he reached on the Article 40.4 enquiry,

the High Court judge did not consider it necessary to proceed with the constitutional challenge. In two judgments consequent on the

inquiry, delivered successively on the 26th August, 2014 and 11th September, 2014, the judge held the detention of the respondents

was not in accordance with law, and directed their release. The Governor now appeals those decisions.

The Warrant

4. This appeal concerns warrants issued pursuant to s.7 of the Acts of 1995 - 1997. It will be helpful now to refer to the relevant

terms of the High Court warrants. The facts of each case do not differ in any material way. The relevant sections of the warrant

referred to below are those issued in the case of the first named respondent, Fintan Paul O’Farrell. The other two adopt the same

format, as follows:

“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, Great Britain and Northern Ireland

Crime:

(i) Conspiracy to cause explosions

(ii) Inviting another to provide money or property for the purpose of terrorism

(iii) Entering into an arrangement to make money and property available for terrorism.

Sentences in the Sentencing State:

(a) 28 years imprisonment for the conspiracy to cause explosions at (i) above

(b) 12 years imprisonment, concurrent with the said 28 years imprisonment, for the offences at (ii), and (iii) above.

Date of commencement of sentences: 7th May, 2002 …” (emphasis added)

Two key points arise in this appeal. One relates to the ‘commencement date’ in the warrant of 7th May, 2002; a more difficult

question arises from the recorded sentence of ‘28 years imprisonment’ for conspiracy.

The Legislation

5. The two Acts of 1995 and 1997 permitted the government to accede to the Convention on Transfer of Prisoners, promulgated by

the Council of Europe in 1983. For reasons explained in more detail later, the High Court judge held that the Acts required that the

sentences to be served in Ireland were incapable of enforcement in Ireland.

The Procedure in the High Court

6. The issues which arose in the application for an inquiry were by no means simple. In his first judgment, dated the 26th August,

2014, Hogan J. held that the warrants issued by the High Court on the 28th July, 2006 (as above ‘the 2006 warrant’) “incorrectly”

recorded that the sentence imposed on the respondents was of 28 years, and were, to that extent, “defective”. He reached this

conclusion having regard to the judgment of this Court in Sweeney v. The Governor of Loughan House Open Centre [2014] IESC 42,

[2014] 2 ILRM 401. That judgment is analysed later.

7. The judge also held that questions regarding entitlement to remission, identified in Sweeney, led inevitably to the conclusion that

the objective reality of the sentences should have had a true duration of approximately 18 years and 8 months, and that this term

should have been recited in the warrant. The judge held that, as a result of differences which had arisen between the Irish and

English sentencing systems; the 28 year sentence imposed by the English courts should properly have been “adapted” in 2006,

pursuant to s.7(5) of the Transfer of Sentenced Persons Act, 1995.

8. Hogan J. considered that the adapted sentences should have been recited in the warrants. Applying principles identified in

Sweeney, he held that the British system of automatic release by way of legal entitlement, after service of two-thirds (or, in the case

of conviction, before April, 2005, one-half of the sentence), went to the “legal nature” of the sentence imposed by the English

courts; whereas the Irish system of remission which normally provides one-quarter remission, was a matter fundamentally going to the

question of the administration of the sentence in Ireland.

9. These findings raised serious questions regarding the validity of the warrants. Hogan J. adjourned the cases before him for further

hearing. The judge had not, by that time, reached a final conclusion as to the legal consequences of the defects in the warrants, or

specifically, whether the defects which he found were remediable, either by resort to other provisions of the two Acts, or by

invocation of the inherent jurisdiction of the Court. At the time he delivered his first judgment, therefore, the judge had not finally

concluded that the warrants were “fundamentally defective”, in such a way as would warrant directing that the respondents be

released (cf. State (Royle) v. Kelly [1974] I.R. 259).

10. From this first judgment of the 26th August, 2014 then, there arose the closely-connected question as to whether the Minister

might apply to the same court, pursuant to s.9 (1) (b) of the Act of 1995, to “vary” the 2006 warrant issued by the High Court under

s.7 of the Act of 1995, so that the sentence imposed by the English courts could lawfully be modified.

11. After a second hearing, Hogan J. concluded in a further judgment delivered on the 11th September, 2014 that, prior to transfer in

2006, there had been a duty on the State to adapt the English sentence by means of an adaptation order under s.7(5) of the Act of

1995. Counsel for the State had applied to vary the sentences, either under s.9 of the 1995 Act, or pursuant to inherent jurisdiction.

The judge held that power to “vary” a warrant, under s.9 of the Act of 1995, did not extend to a fundamental modification of the

sentences actually imposed, such as would have been required to render them compatible with Irish law. Speaking of the first

respondent’s warrant, he held then:

“… the English sentence in question is ineffective in law unless it has been adapted by this Court under s. 7(5) of the

1995 Act. The Court has not, however, been given the statutory power to make the necessary adaptation order after

the transfer of the sentenced person has taken effect. In the absence of such a statutory power to adapt post the

making of a transfer order, the Court is helpless to effect the curative action which would be necessary to remedy the

defective warrant in respect of which the applicant is presently held by the respondent.” (Emphasis added)

As the facts of each case were the same, the High Court held, therefore, that the detention of each of the respondents could not be

shown to be lawful, as a valid warrant could not be produced to justify their detention.

The Cross Appeal

12. By a cross appeal, the respondents contend in this Court that the judge should have directed the respondents’ release,

consequent upon his first judgment of the 26th August, 2014. As Henchy J. pointed out in the State (Royle v. Kelly) [1974] I.R. 259,

it is the circumstances of a particular case that will usually determine whether or not a detention is in accordance with law. While it

may be said there was an unusual elapse of time, in an Article 40.4 enquiry, between the first and second judgments, it was only

after the second hearing that the judge was in a position finally to conclude that, again to quote Henchy J. in Royle, the procedure

had been so fundamentally flawed by basic defect as make the warrants a nullity, and thus to hold that the respondents’ detention

was not in accordance with law. Counsel for the respondents submit in the cross appeal that adjourning the matter to a further

hearing was tantamount to an unlawful stay, when an absolute order granting release should have been granted. I do not agree. The

judge did not grant a “stay”, but, rather, to my mind, was not in a position to reach a final conclusion on the critical issue of the

legality of the detention before him until 11th September, 2014 (See N v. HSE [2006] 4 I.R. 374, and by way of distinction, FX v.

Clinical Director CMH [2014] IESC 1). I do not think the judge can be criticised for the procedure he adopted in this difficult case. The

obligation which devolved upon him under Article 40.4 of the Constitution was to forthwith “enquire into” the complaint that the

prisoners were being unlawfully detained. The judge embarked on that enquiry promptly; it was a matter for him, having heard the

parties, to determine the matter in a manner best calculated to resolve the issues of law and fact raised in the proceedings, and to

achieve the interests of justice (see The State (Whelan) v. Governor of Mountjoy Prison [1983] ILRM 52 at p.55, Barrington J.).

Background Facts

13. For present purposes, a full narrative of the facts must now go back some fourteen years, to the year 2001. The respondents,

styling themselves members of an organisation known as the “Irish Republican Army”, travelled in that year to Slovakia, acting in the

belief that they were buying arms and obtaining financial support from the then Iraqi Intelligence Service. Their intention was to meet

persons whom they believed were intelligence agents of the government of Iraq, then under the control of Sadam Hussein. In fact,

the people they met with were British Security Service undercover agents, who purported to be working on behalf of the then Iraqi

government. The respondents engaged in negotiations to buy substantial amounts of arms and explosives for their organisation. They

sought financial support. These arms and munitions, had they been put to use, would have led to very significant serious injury, or

loss of life. Fortunately, their efforts failed. The respondents were arrested in Slovakia on the 5th July, 2001. They were extradited to

the United Kingdom, and charged there with terrorist offences. On the 2nd May, 2002, in Woolwich Crown Court, they pleaded guilty

to offences involving conspiracy to cause explosions, inviting others to provide money or property for the purposes of terrorism, and

entering into an arrangement to make money or property available for terrorism. On 15th July, 2005, the sentences of 30 years

imprisonment were reduced by the Court of Appeal of England and Wales (Criminal Division), to terms of 28 years, backdated to the

5th July, 2001, the date of the respondents’ arrest. Each final, reduced sentence of 28 years constitutes, in each case, what is

defined in the Transfer of Sentenced Persons Acts, 1995 and 1997, as a “final order” upon which the courts in Ireland were to act in

making a transfer order.

14. In 2005, having received legal advice, the respondents decided to avail of the transfer procedures outlined in the Transfer of

Sentenced Persons Acts, 1995 to 1997. The effect of such a transfer would be to permit each of them to serve out the balance of

their sentences in Ireland. In the course of these dealings, the respondents received a series of communications from Mr. Brendan

Eiffe, an official of the Irish Department of Justice, indicating the terms and conditions of their transfer. The respondents signed forms

of acknowledgement or acceptance, having received further legal advice. Part of that documentation was a letter, specifically

drawing attention to the fact that the standard rate for remission of a sentence in Ireland was one-quarter, or 25% of the total

duration of the sentence. The Department of Justice official estimated that the respondents’ final release dates would be, on transfer,

the 20th January, 2022. If, however, they wished to remain in jail in England, their release date would have been significantly earlier,

that is, on the 29th April, 2020. This was because of the altered legislative regime in the United Kingdom. On the 27th June, 2006,

each respondent wrote, accepting the conditions imposed as being the consequence of their transfer.

15. To allow for the transfers, the Minister for Justice instituted proceedings under s.7 of the Acts of 1995 to 1997. Applications in

that behalf were made only on an ex parte basis. No legal right of audience is provided for sentenced persons on such applications. As

Laffoy J. points out in her judgment, the relevant Rules of Court precludes any right of audience for a prisoner. On the 28th July,

2006, the High Court issued the warrants impugned in these proceedings. The prisoners were transferred to Ireland on the 27th

September, 2006.

Issues

16. Key questions which arise in this appeal include, whether applications should have been made prior to transfer, to the High Court

to “adapt” the sentences, so as to render them compatible with Irish law; and whether, now, the warrants can be “varied” to render

them so compatible? Under the law of England and Wales, the maximum sentence available on a charge of conspiracy to cause

explosions is life imprisonment; (s.3(1) Explosive Substances Act, 1883). By contrast, the maximum sentence which may be imposed in

this State for the same offence is now, and was at all material times, 20 years (s.3 Explosive Substances Act, 1883, as substituted

by The Criminal Law (Jurisdiction) Act, 1976, as amended by the Offences Against the State Act, 1998, and the Criminal Justice Act,

1999). Expressing what is in Convention terms, the “non-aggravation” principle, the original Act of 1995 set out provisions under

which sentences to be served in Ireland, as what is termed an “administering state” (i.e. the state receiving prisoners), should not be

greater than the maximum permitted under our law. These provisions were significantly amended in 1997. There was no derogation

from the Convention. The question is whether Hogan J. was correct in concluding that he could not vary sentences under the Acts of

1995 – 1997? In order to determine these issues, it is necessary now to consider, and in some detail, the Council of Europe

Convention on the Transfer of Prisoners, from which our own legislation stemmed. Then, having considered the general scheme of this

State’s legislation, it will be necessary to consider the judgment of this Court in Sweeney. Thereafter, it falls to make a number of

further observations on the Article 40 procedure involved in making these applications, and the conduct of the respondents in

consenting to be bound by Irish law. The essential question considered, finally, is whether the two warrants can now be “varied” so

as to render them valid, and in accordance with law.

The Submissions of the Appellant

17. On behalf of the Governor, counsel submitted in this appeal that errors in the issuing process, or the body of a warrant, did not,

of themselves, require prisoners to be released in an Article 40 enquiry; that a well-established remedial technique was to permit

retrospective validation of a defectively performed procedural step at the enquiry itself; and that, to quote from Mr. Kevin Costello’s

comprehensive text “The Law of Habeas Corpus in Ireland”, Four Courts Press 2006, the earliest application of the remediation

principle is “… the ancient common law rule under which a defective warrant may, in the course of habeas corpus proceedings, be

replaced by a corrected warrant” (Costello, at page 72).

18. Counsel submitted that Hogan J. erred in not remediating defects in the warrants, and that the warrants could, and should, have

been “varied”, in accordance with s.9 of the Act, to which reference will be made later. It was submitted that such variation,

whether in accordance with s.9 of the Acts, or pursuant to inherent jurisdiction, would have had the effect of rendering the warrants

valid and in accordance with the law. Counsel submitted the two Acts, in fact, allowed for variation, and that the effect of s.7 (5) (b)

of the Act, as amended, was that it was lawful to enforce the sentence imposed in the sentencing state, even if the sentence

exceeded the maximum that might be imposed for the same offence in this State. The Governor’s case is that in accordance with

Sweeney the actual sentence imposed in this case should be seen as one of 18 years and 8 months simpliciter; (i.e. two-thirds of 28

years), that such sentence would not exceed the 20 year maximum provided for in Irish law; that the warrants correctly recorded the

sentence at Woolwich Crown Court; that they did not have to set out the length of the detention; and that, to again quote Henchy

J. in Royle, cited earlier, the warrants were not “wanting in the fundamental legal attributes which under the Constitution should

attach to the detention”. Counsel submitted that the absence of a stipulated term of imprisonment on the warrants was not fatal.

Relying on McDonagh v. Frawley [1978] I.R. 131, counsel contended that the defects were not fundamental, and that for this reason,

the respondents, as prisoners in detention were dis-entitled to seek the relief sought, by habeas corpus; and that it was not open to

them to challenge their detention (See, on this, Brennan v. Governor of Portlaoise Prison [2008] 3 I.R. 364). Lastly, the case was

made that, by acquiescence, or consent, the respondents had debarred themselves from relief.

19. For reasons set out in this judgment, I view certain of these contentions with concern. While understanding entirely the reasons

and context in which they are made, I take the view that to hold with these submissions would be to proceed in a manner which is

fundamentally at variance with both the letter and intent of the two Acts, and the Convention.

The Convention on Transfer of Prisoners

20. The Convention on the Transfer of Prisoners was promulgated by the Council of Europe in 1983. While, in the initial stages,

prisoner transfers were often hindered by the transferring states’ refusal to have the sentence reviewed by the judicial authorities of

the receiving state, later, the enforcement in the prisoner’s home country gained priority over more theoretical considerations. (See

Epp ‘The European Convention’, in International Criminal Law, Bassiouni 2nd Ed Transnational Publication, New York, p563, et seq).

Ireland became a signatory to, and ultimately ratified the Convention, as a step in the negotiations between the two governments

and the other parties, where repatriation of prisoners held in the United Kingdom for terrorist offences became an emotive issue.

Interpretation of the Act

21. The 1995 Act did not incorporate or implement the Convention. Rather, it provided the lawful authority for the government to

enter into the agreement (see Irish Current Law Statutes Annotated (hereafter “I.C.L.S.A.”), Boyle Ed. R62 August 1998). But, as the

Court is here interpreting the statute authorising accession to an international Convention, both the text of the Convention itself, and

its accompanying Explanatory Report, can be used as an interpretative aid to the legislation (Bourke v. Attorney General & Another

[1972] I.R. 36, O’Dalaigh C.J., at page 54).

22. It is, of course, within the power of this State to enter into a bilateral arrangement on prisoner transfer with another state. An

arrangement of this type might contain such terms as might appear appropriate to each State entering a bilateral agreement. But

these appeals do not concern such a bilateral agreement. Rather, they concern the interpretation of two statutes which are intended

to give expression to rules set out in the Convention. For the purposes of this judgment, I confine myself to addressing only the

issues necessary for the resolution of matters before the Court. The real question before the Court is whether the warrants can now

be varied. This is quite a narrow question.

The Convention

23. As set out in its Preamble, the Convention was intended further to develop international co-operation in the field of criminal law.

Its intent is to allow an opportunity for prisoners to serve their prison sentences within their own countries of origin. It is,

undoubtedly, partly humanitarian in its aims. Its objectives include ensuring that such co-operation should further the ends of justice,

and the social rehabilitation of sentenced persons. The preamble identifies both justice and rehabilitation as being equivalent values,

and does not seek to place one over the other in a hierarchy of objectives.

24. There are many other bilateral or multi-lateral arrangements to the same effect, both in Europe and across the globe. As a

consequence of this Convention, a person sentenced abroad in one contracting state (“a sentencing state”), may be transferred to

their home country (“an administering state”). They may then serve either the whole, or the remaining part of their sentence in their

own states. Some 64 States acceded to the Convention, a significant number of which are not, in fact, European countries at all.

Such accession was permitted by Article 18 Para. I, and Article 19, Para. I, of the Convention itself.

25. As Epp (referred to earlier) describes in drafting the Convention, the question of ‘sentence compatibility’ created difficulty. Justice

and penal systems differ from one state to another. The administration of a sentence cannot violate the ordre public of the

administering state. One of the questions to be considered in a transfer, therefore, is whether a sentence imposed in a sentencing

state is compatible with the justice system in the administering state.

26. For the sentencing state, Article 8 of the Convention safeguards the principle non bis in idem in respect of the enforcement of

the sentence after a transfer has been effected. For example, a sentencing state is prevented from enforcing the sentence, if the

administering state considers enforcement of the sentence to have been completed. The enforcement of the sentence is governed by

the law of the administering state, and that state alone is competent to take all appropriate decisions (Article 9 of the Convention).

Conversion or Continued Enforcement?

27. Because of different sentencing and penal systems, the Council of Europe expert drafting group devised two different structural

approaches, whereby the provisions of the Convention might be enacted in subscribing jurisdictions. These were, respectively, the

‘Conversion’, and the ‘Continued Enforcement’ models. Ireland adopted the latter approach; perhaps from concerns as to

constitutional questions which might arise in converting sentences imposed by the courts of another state.

28. The former, “Conversion” model, allowed an administering state to substitute its own sentence for the sentence actually imposed.

This process is implemented through a judicial or administrative procedure, and necessitated a judicial decision by the administering

state, wherein a sentence prescribed by law in that administering State would be substituted for the sanction imposed in the

sentencing state.

29. In the second, more limited process, of “continued enforcement”, a member state’s court does not convert, or substitute, its own

sentence for a foreign sentence; but rather is bound by, what are termed, respectively, the “legal nature” and “the duration” of the

sentence imposed in the sentencing state. The Explanatory Report, as part of the travaux préparatoires to the Convention, assists in

understanding both the Convention itself and, in turn, the two statutes. Paragraph 43 of that Report states, that in the case of

continued enforcement, the administering state may continue the enforcement of a sentence “immediately”, or through a court or

administrative order. But, what is critical from the text of the Convention is that the court of an administering state must, before

transfer, adapt an incompatible sentence so as to render it compatible with national law. A sentence which is not appropriately

adapted does not accord with the principles of the Convention.

Further Aspects of Continued Enforcement

30. In analysis of the “continued enforcement” model, as applied in this State, it is now necessary to consider two further concepts,

those of “legal nature” and “duration” of a sentence.

‘Legal Nature’

31. As described at paragraph 49 of the Report, “legal nature” of a sentence is characterised as “the kind of penalty imposed where

the law of the sentencing State provides for a diversity of penalties involving deprivation of liberty, such as penal servitude,

imprisonment or detention.”

‘Duration’

32. A further concept, “duration”, is looked to in order to ensure “that the sentence to be served in the administering State, subject

to any later decision of that State on, for example, conditional release or remission, corresponds to the amount of the original

sentence, taking into account the time served and any remission earned in the sentencing State up to the date of transfer.” (See

Paragraphs 49 and 50 of the Explanatory Report).

The Non-Aggravation Principle

33. Paragraph 50 of the Explanatory Report explains that adaptation must not result in a situation where either the legal nature, or

the duration, of a sentence is aggravated by adaptation; and the sentence, as adapted, must not “exceed the maximum prescribed

by the law of the administering state” (paragraph 50 of the Report; Article 10.2 of the Convention.) This is known as the non-

aggravation rule.

What is the Distinction Between Legal Nature and Duration?

34. It might be said that the actual distinction in application between “legal nature” and “duration” has created some difficulty. In

Caffrey v. Governor of Portlaoise Prison [2012] 1 I.R. 637, the members of this Court differed, as to whether, on the facts, the

balance of a prisoner’s life sentence imposed in England, went to the “nature” or “duration” of the sentence, as defined in the Act.

The majority held that what was in issue there was a ‘legal nature’ question. What is now clear is that, in our law, they are to be

seen as distinct concepts. It is unnecessary for the purposes of this judgment to go further. To reiterate, the question before the

Court is whether, (and to what extent), the warrants herein can be varied; there is no real dispute between the parties that the 2006

warrants are defective? While the legislation is partly humanitarian, in intent, it cannot be denied that the issue goes to the legality of

whether a prisoner is lawfully detained. I do not think the Acts lend themselves to a broad interpretation, therefore. If the defects

cannot be remedied, then the question arises, are they so fundamental that the respondents’ detention is unlawful in accordance with

law?

Only Conversion May Take Place After Transfer

35. It is noteworthy that Article 11.2 of the Convention envisages that conversion might take place “after the transfer of the

sentenced person” by keeping the person in custody, or otherwise ensuring the prisoner’s ongoing presence in the administering

state, pending the completion of the procedure (Article 11.2). But no equivalent provision either exists, or is implied, under the

“continued enforcement” model. The reason for this is not hard to understand. It is impossible to conceive that a “continued

enforcement” prisoner could be present in an administering state, other than on the basis of a continuation in force of the original

sentence, albeit, where necessary, suitably adapted. The sentence imposed by the trial court is ‘continued’ in being, albeit suspended

in effect. The Convention does not, to my mind, envisage or identify a separate concept, known as “variation” of a sentence, as a

post hoc synonym, or substitute, for “adaptation” prior to transfer. I now further examine how the Convention deals with adaptation

and certain other relevant issues in a little more detail.

Continued Enforcement: Adaptation, Correspondence, Non-Aggravation

36. Article 10 of the Convention addresses the concept of “adaptation”; and the rules of “correspondence”; and “non-aggravation”;

in the following terms:

“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.” (Emphasis added)

A number of consequences flow from these provisions. In continued enforcement, the administering state is bound by the legal nature

and duration of the sentence. If, however, the national law of the administering state so requires, the court of that State shall adapt

the nature or duration of the sentence to the punishment or measure which, as far as possible in domestic law, corresponds with the

sentence imposed by the sentencing state. This is known as ‘correspondence’. On the other hand, as pointed out earlier, the non-

aggravation rule in the Convention provides that the court of the sentencing state shall not adapt a sentence beyond the maximum

which may be imposed in the sentencing state itself.

37. Paragraph 49 of the Explanatory Report sets out:

“49. Where the administering State opts for the "continued enforcement" procedure, it is bound by the legal nature as

well as the duration of the sentence as determined by the sentencing State (paragraph 1): the first condition

("legal nature") refers to the kind of penalty imposed where the law of the sentencing State provides for a diversity of

penalties involving deprivation of liberty, such as penal servitude, imprisonment or detention. The second condition

("duration") means that the sentence to be served in the administering State, subject to any later decision of that State

on, for example, conditional release or remission, corresponds to the amount of the original sentence, taking into

account the time served and any remission earned in the sentencing State up to the date of transfer.” (Emphasis added)

38. Paragraph 50 then goes on to explain:

“50. If the two States concerned have different penal systems with regard to the division of penalties or the

minimum and maximum lengths of sentence, it might be necessary for the administering State to adapt the sanction

to the punishment or measure prescribed by its own law for a similar offence. Paragraph 2 [of Article 10] allows

that adaptation within certain limits: the adapted punishment or measure must, as far as possible, correspond with

that imposed by the sentence to be enforced; it must not aggravate, by its nature or duration, the sanction

imposed in the sentencing State; and it must not exceed the maximum prescribed by the law of the

administering State. In other words: the administering State may adapt the sanction to the nearest equivalent

available under its own law, provided that this does not result in more severe punishment or longer detention. As

opposed to the conversion procedure under Article 11, under which the administering State substitutes a sanction for

that imposed in the sentencing State, the procedure under Article 10.2 enables the administering State merely to adapt

the sanction to an equivalent sanction prescribed by its own law in order to make the sentence enforceable. The

administering State thus continues to enforce the sentence imposed in the sentencing State, but it does so in

accordance with the requirements of its own penal system.” (Emphasis added)

39. On closer reading, a certain ambiguity is to be found in the second and third (emphasised) sentences in Article 10.2. Are “legal

nature” and “duration” to be treated as entirely distinct? As will be shown, this is a matter which was addressed in national

legislation.

40. What is entirely clear is that, the effect of a transfer is to suspend “the enforcement of the sentence in the sentencing state”

(Article 8.1 of the Convention). What occurs in the continued enforcement model must occur under recognition of the ongoing

existence of the original sentence. No ‘new’ sentence is substituted for that sentence. The sentence is not converted. Article 9 of

the Convention provides that, prior to a transfer, the administering state is to inform the sentencing state as to which procedure it

will follow. It further provides that the “enforcement of the sentence shall be governed by the law of the administering State, and

that that State alone shall be competent to take all appropriate decisions”. As the majority of this Court held in Caffrey, enforcement

of the sentence is a matter for Ireland, as the administering state. This necessitates the application of the Irish parole system.

Enactment of the Convention: The Acts of 1995 and 1997

41. In 1995, the Oireachtas legislated so as precisely to identify the sequence, and stages, of the transfer procedure in this State.

Later, by the amending the Act of 1997, the Oireachtas legislated, inter alia, to distinguish between the concepts of “legal nature”

and “duration”. One may legitimately infer that one of the objects of the 1997 amendments was to permit the transfer of prisoners

while maintaining the integrity of the sentences imposed. A further intent, then, was to ensure a court would be permitted to adapt a

sentence that was incompatible by its duration with the laws of the State, only where an application in that regard was made by the

Minister for Justice, in his or her absolute discretion. The motivation behind the amendment was to facilitate the negotiation of

transfers with States which insisted that sentences imposed in their own courts could not be reduced, while at the same time

allowing a mechanism for the adaptation of the duration of the sentence if the state in question had no objection to such a procedure

(See I.C.L.S.A., cited earlier).

42. In consideration of the two statutes, it is necessary to be clear at the outset that what is in question is a “sentence”, defined in

Article 1 of the Convention as meaning, 1(a) “any punishment or measure involving deprivation of liberty ordered by a court for a

limited or unlimited period of time on account of a criminal offence”; and 1(d) in referring to an administering state as being that

State to which the “sentenced person” may be, or has been, transferred in order to serve his sentence. Section 1 of the Act of 1995

refers to “sentence” in very similar terms, 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”. Whether this definition may be

interpreted broadly to encompass remission is not an issue which need arise.

The Scheme of the Legislation

43. The Acts of 1995 and 1997, obviously, deal both with transfer procedures for ‘incoming’ and ‘outgoing’ prisoners. Section 5 of the

former deals with the procedure to be adopted for a prisoner being transferred from Ireland to another jurisdiction, and is not material.

However, the provisions of s.6 and s.7, as amended, are essential to the situation of the ‘incoming’ respondents in this appeal.

Section 6(5) of the Act: The Legal Status of the High Court Warrant

44. Section 6(5) of the 1995 Act, deals with the procedure for prisoners being repatriated to Ireland. It provides that the Minister will

not consent to a transfer, unless he or she is satisfied that:

“… all reasonable steps have been taken to inform the sentenced person concerned in writing in his or her own language.

The sentenced person is to be made aware as to the effect on them of their detention on foot of a warrant issued by

the High Court …” (Emphasis added)

The warrant, then, is the keystone for lawful detention in Ireland. It must correspond with the conditions laid down in the two Acts.

The existence of a valid warrant is a necessary precondition to transfer and detention within the State. Such warrant should set out,

as conditions precedent for jurisdiction, both the legal nature and duration of the sentence. Alternatively, such matters should be

readily ascertainable from supporting documentation or records. Only then can the bringing of a prisoner into the jurisdiction, and his

or her subsequent detention, be rendered lawful.

Section 7 Application to the High Court

45. The preliminary stages of an application for transfer are dealt with in ss. 7(1) to (4) of the Act of 1995. These remain unamended,

and provide 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.”

(Emphasis added)

Obviously, the fact that a warrant is ‘issued’ by the High Court does not necessarily mean that it is, ipso facto, valid, or of full force,

and effect. Validity will depend on its fulfilment of the necessary conditions to jurisdiction. This, in turn, hinges on compliance with

the Acts. I turn next to sub-section 7(5) of the Act of 1995, first as it stood in its un-amended form, and later in the form in which it

was amended in 1997.

The Amendments: Section7 (5) and Section 7(10) of the Act of 1995

46. The need for, and effect of, amendments of the Act of 1995 can only be understood in its historical context. The amending 1997

Act was introduced in some haste, as paving the way in negotiations leading to the Good Friday Multi-Party Agreement in 1998. As

enacted in 1995, s.7 (5) had provided for adaptation of a sentence, which, “by its legal nature or duration”, was “incompatible with

the law” of this State. But, addressing the not-always-clear text of Article 10.2 of the Convention, s.7(6) of the 1995 Act provided

that, where a sentence was adapted, it should, as far as was practicable, correspond to the nature of the sentence imposed by the

sentencing state, and should not, in any event, be:

“(a) aggravated by its legal nature or duration, or

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

47. Having regard to the considerations outlined earlier, the Oireachtas enacted the amending Act in 1997. This short piece of

legislation sought, in amendments to s.7 (5) and s.7 (6), to avoid any elision between the concepts of legal nature and duration. But,

the effect of the amendments was to make clear that, in accordance with the section, the High Court might adapt the legal nature,

and the duration of the sentence; and that in considering a sentence, a court might adapt either or both, but only on application of

the Minister. On this, s.7 (5) (b) was explicit: any application to adapt legal nature or duration could only be made by the Minister,

and no one else. The process of adaptation was, in a sense, to be ‘ring fenced’ for this purpose. As will be seen later, s.9 allows the

warrants to be varied in certain circumstances. But does it allow sentences to be varied?

48. Section 7(5) now provides:

“(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.” (Emphasis added)

And, s.7(6) provides:

“(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.” (Emphasis added)

The amended Act then addresses “duration” in this way:

“(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.” (Emphasis added)

Both s. 7(6) (a) and s.7 (6) (b) then addressed the concepts of “correspondence”, “maximum penalty”, and “non-aggravation”, set

out in Article 10.2 of the Convention.

49. Sections 7(7) to (9) provide:

“(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.”

One might well envisage, by reference to s.7 (8), why a revocation of enforcement might arise as a consequence of a decision, such

as amnesty or review, in the sentencing state. But, in order further to emphasise the distinction between “legal nature”, and

“duration”, the Oireachtas then provided, at s.7 (10) of the amending Act, that:

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

sentence.” (Emphasis added)

50. The distinction between the provisions of s.7(5)(a) and s.7(5)(b) was intended to ensure that any question of adapting the

duration of a sentence could only be made to the High Court at the Minister’s “absolute discretion”. There was no such application.

Precisely how this might have been done does not fall for consideration. Counsel for the Governor now relies on s.9 to seek a variation

of the warrant; alternatively, seeks to invoke the inherent jurisdiction of the Court for this purpose.

51. Section 8 of the Act may briefly be touched on. It provides:

“8. Where a warrant has been issued in respect of a sentenced person under s.7 of this Act, the following provisions shall

have effect:

(a) the sentenced person concerned shall be deemed to be in legal custody at any time when he or she is being

taken under the warrant to and from any place or being kept in custody under the warrant and if the person

escapes he or she shall be liable to be retaken in the same manner as a person who escapes from lawful custody

…”

52. The remaining subsections of s.8 addresses the Minister’s powers to designate persons for the purposes of the Acts and are not

material.

53. No argument was made that s.8 might be used to oust a challenge by way of an enquiry made under Article 40.4 of the

Constitution. Moreover, (absent any other legislative contrary intention), the Acts themselves are to be interpreted harmoniously, and

in a manner in accordance with the Convention, the Report, and other terms of those statutes. Insofar as legal provisions thereof

create a question, or ambiguity, such question may be resolved in a manner informed by the Convention. It is necessary to bear in

mind that, in legislating and applying the two Acts, Ireland sought to enunciate continued adherence to the provisions of the

Convention. But it is also necessary to recollect that the Acts deal with the consequences of a prisoner’s detention. This is a

deprivation of liberty. It is now necessary to address a further question, that is, how the law stood in 2006, and how it should have

been applied prior to transfer of the respondents.

When Must Adaptation Take Place?

54. The terms of s.7, both before and after amendments, make absolutely clear that any adaptation procedure must take place prior

to the sentenced person is brought into the State. On this, s.7(1) envisaged that when the Minister consented to a request for a

transfer, he or she would apply to the High Court to issue a warrant authorising the bringing of the sentenced person concerned into

the State from a place outside the State. This “bringing” could not be accomplished if the sentenced person was already within the

territory of this State. Moreover, s.7 (2) makes clear that a person may be brought into the State only when the High Court “is

satisfied that the requirements specified … have been fulfilled, and that the Minister consents to the transfer concerned.” Once

these conditions have been complied with, the High Court may, then and only then, validly issue a warrant giving authority that the

sentenced person be brought into the State, and detained here. For a person to be in lawful custody within the territory of the State,

therefore, the warrant issued by the High Court must comply with the fundamental terms of s.7 of the Act of 1995, as amended.

The Judgment of this Court in Sweeney

55. It is now necessary to outline the conclusions of this Court in Sweeney. There, the applicant received a sentence of 16 years

following a conviction in England for serious drug offences. The conviction was in December, 2006. Thus, the sentence was imposed

after the provisions of the United Kingdom Criminal Justice Act, 2003 came into effect. Had the applicant remained a prisoner in

England, he would, on foot of the United Kingdom 2003 Act, been entitled by 2006 to release having served one-half of his sentence.

However, he had sought to avail of the transfer legislation. He thus continued to be detained in Ireland beyond the 8 year period. As

the administering state, the Irish authorities took the view that the applicant was liable to serve a full period of 16 years, although

the applicant would, of course, have been entitled to 25% remission in accordance with Irish law. There was, then, a very great

disparity between the two potential outcomes. This Court held that the detention was, by the time of the appeal, unlawful.

56. In Sweeney’s case, this Court (Denham C.J., Murray J., Hardiman J., Clarke J., MacMenamin J.), took as a starting point the

definition of “sentence” contained in Article 1 of the Convention; that is, as defined there, as any punishment or measure involving

“deprivation of liberty …”, and reflected in s.1 of the Act of 1995. Two concurring judgments were delivered.

57. Murray J. laid emphasis on the fact that the appellant would have been released in England under strict conditions did not take

away from the objective fact that, as and from a half-way point in his sentence, he would have had to have been released by

operation of the law, and thereafter been entitled to serve the remainder of his term of imprisonment at liberty in the community

under “licensed conditions” (para. 42, p. 412, 2 ILRM [2014])). Having observed that the net effect of transfer was that the appellant

could not be conditionally released, he concluded:

“43. In the light of the foregoing it seems to me quite self-evident that, whatever descriptive terms are applied to the

sentence imposed on the appellant by the English court, objectively it consisted of one period of imprisonment or

‘deprivation of liberty’, to use the language used in the Act in defining a “sentence”, and a second period of liberty under

licence which occurred by operation of law and not by virtue of any remission, discretionary or otherwise, granted by

the English authorities.”

He continued:

“… I can see no legal basis on which the appellant could be regarded, as contended by the Minister, as being required to

serve in this country a term of imprisonment, or deprivation of liberty, of 16 years, subject only to the rules on the

enforcement of a 16 year term of imprisonment applying in this country, namely, the grant of discretionary remission

for good behaviour by the Minister. That would require him to serve a sentence longer than that imposed in the

sentencing state. For the reasons stated the legal nature and duration of the sentence, namely, deprivation of liberty, is

8 years of actual imprisonment.”

58. Clarke J., too, considered that there was a material difference in the legal nature of the sentence, which, as a matter of binding

law, operated as one of 8 years actual imprisonment, followed by 8 years in the community; by contrast with a sentence of 16 years

imprisonment with the possibility of remission, even where that remission might amount to 25%. He considered that the “form and

legal nature of the position in England and Wales is a sentence which is, by operation of law, in two halves. The form and legal

nature of a sentence in Ireland is a single sentence, with the possibility of remission.” He concluded that to describe the sentence as

being one of 16 years imprisonment, without any form of qualification, would, in his view, “fly in the face of the uncontested

evidence”. (c.f. p.423 2 ILRM [2014] para. 4.13 and para. 4.14). He was satisfied that the legal nature of the sentence imposed on

the applicant, Mr. Sweeney, was one which only permitted his imprisonment for 8 years, and that for any additional period of

imprisonment to be lawful, further significant steps would have been required. Clarke J. explained:

“4.10. So far as Irish law itself is concerned it must be recalled that, for the purposes of the 1995 Act, a sentence

means a punishment or measure involving deprivation of liberty. It is hard to see how that term could mean anything

other than imprisonment in one form or another. The whole regime of the 1995 Act is designed to facilitate the transfer

of persons who are actually incarcerated in the sentencing country. As noted earlier in the course of this judgment,

there is a separate convention on the supervision of conditionally sentenced or conditionally released offenders to which

neither the United Kingdom nor Ireland are parties. It seemed to follow that the Convention is concerned with persons

who remain in custody and who have not yet been conditionally released or, indeed, have not even been conditionally

sentenced. Likewise, it seems that the 1995 Act is solely concerned with persons who are, prior to transfer, currently

serving a period of actual imprisonment in the sentencing country. …

4.11. On that basis I was satisfied that the term sentence as used in the 1995 Act refers to a period of actual

imprisonment.” (See page 422 of the same report)

Taking these considerations into account, can a “sentence” of 28 years imprisonment be interpreted as meaning anything other than

a deprivation of liberty for that period? It has not been argued that Sweeney was wrongly decided, or that the decision can be

convincingly distinguished in its application to these appeals.

59. With all these considerations in mind, one may now turn to the judgment now under appeal.

The High Court Judgments Under Appeal

60. The two High Court judgments were delivered, during vacation, and under serious time constraints in an Article 40 application. The

trial judge engaged in a very thoughtful analysis of both the statutes, and the relevant judgments of this Court. Having pointed out

that the sentencing system which now operates in England and Wales is appreciably different from that which obtains under Irish law,

the judge observed that, having regard to the relevant English law, the three respondents herein would automatically have been

entitled to release on sentence following completion of two-thirds of their sentences. The respondents would have then been

required, under law, to serve the one-third balance of their sentence in the community; although there were circumstances whereby

a prisoner could be returned to prison for misconduct during the course of the final third of his sentence.

61. The passages below, from the learned High Court judge’s conclusions, provide a convenient summation of certain of the issues

which are necessary for determination in this appeal. Hogan J. pointed out in his first judgment:

“12. The significance of these differences between the two sentencing regimes was at the heart of the Supreme Court's

decision in Sweeney v. Governor of Loughan House Open Centre [2014] IESC 42. In Sweeney the applicant had received

a sentence of 16 years following his conviction by the English courts for serious drugs offences in December 2006, i.e.,

after the provisions of the UK 2003 Act had taken effect. Following his transfer to Ireland under the 1995 Act, the issue

arose as to what constituted the sentence (or, to use the terminology of s.1 (1) of the 1995 Act, the period of

“deprivation of liberty”) for the purposes of the 1995 Act.”

62. He continued:

“13. It was common case that both the Strasbourg Convention on the Transfer of Sentenced Persons (1983) and the

1995 Act envisaged that the legal effect of the sentence was governed by the law of the sentencing state (in this case,

England and Wales), nevertheless, as Clarke J. put it (at para. 3.2), “sentence administration and enforcement is for the

host country.” It was nevertheless necessary for the Irish courts to have regard to what Murray J. described (at para.

37) as “an objective assessment of its duration and legal nature.” (The 1995 Act gave effect in Irish law to the terms of

that Convention for the purposes of Article 29.6 of the Constitution.)”

63. Citing further passages from the two judgments of this Court in Sweeney, the High Court judge referred to Murray J.’s

characterisation of the “objective fact” that, as and from the half-way point in his or her sentence; the prisoner would, in England,

have been released by operation of law, and then would have been entitled to serve the remainder of the term of imprisonment at

liberty, under licence conditions in the community. Hogan J. pointed out that immediately after pronouncement of sentence on the

respondents, the sentencing judge in England had indicated the sentences should take effect from the 5th July, 2001, the date of the

Slovakian arrests, but that the present warrant did not reflect this important detail. His conclusion was that the English sentence

should, properly, have been adapted under s.7(5) of the Act of 1995; holding that it seemed “necessarily implicit” in Sweeney, that

the continued enforcement option envisaged by Article 9(1) and Article 10(1) of the Convention (as reflected in s.7(4) of the Act of

1995), is no longer appropriate in the case, at least of sentences of this kind, imposed by the courts of England and Wales; having

regard to the manner in which those sentences provide, not for remission as such, but rather for automatic release following the

service of an appropriate portion of the nominated sentence imposed.

The Effect of the Warrants

64. In now further considering the warrants, I should address at the outset what I consider to be one of the flaws in the Governor’s

case. Section 9 allows a warrant to be varied: but this is not the point; the truth is that it was the “sentence” which required to be

adapted. Two questions then arise, first, how can the warrant be varied, if the sentence remains unadapted, and second, can varying

the warrant also vary the sentence? These questions lie at the centre of the continued enforcement model. The effect of a warrant

issued under the Acts must be to authorise the continued enforcement by the State of the sentence concerned; with due regard to

any remission of sentence accrued in the sentencing state, but otherwise to have the same force and effect as a warrant imposing a

sentence following conviction by the sentencing court.

65. In his first judgment, Hogan J. felt that the question of defects in the warrants did not fall into the category of a breach of the

fundamental requirements of the law being the test in “prisoner” Article 40.4 applications as enunciated by O’Higgins C.J. in the State

(McDonagh) v. Frawley [1978] I.R. 131. Hogan J. considered, rather, that the defects fell into an “intermediate category”. I would

reserve consideration of whether there is such an ‘intermediate’ category for an appropriate case. The question does not require

determination here.

66. To anticipate my conclusion, and for the reasons contained in this judgment, I consider this was, in fact, an exceptional case,

where the warrants contained fundamental defects in that the detention was not in accordance with law. I hold the warrants

contained a significant (but remediable) defect as to the commencement date, but also, that there exist irremediable and fundamental

defects as to the procedure adopted, and as to the nature, and content, of the sentence recorded therein. I do not consider that

the respondents, by their conduct, are debarred from obtaining the relief claimed.

Conduct or Waiver?

67. In Caffrey v. Governor of Portlaoise Prison [2012] 1 I.R. 637 at p. 652 to 653, at para. 33, Denham C.J. approved the following

statement of the law by Charleton J., then in the High Court:

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

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

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

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

cannot make lawful what is unlawful. Nor would I believe that the Court has any discretion akin to that exercised in

judicial review proceedings to refuse to make an order in habeas corpus proceedings. There is only one issue in this kind

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

a sentence of imprisonment.”

On this, Denham C.J. observed at p. 653, par. 33:

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

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

question of law.”

68. The consequence of the application of this principle, as the law stands, is that a plea of waiver, consent or estoppel cannot

assist the Governor. It has not been suggested that Caffrey was incorrectly decided. The observation appears directly on point. While

the following observation is obiter, the circumstances of this Article 40 enquiry are distinct from those which may arise regarding

waiver in the law of tort. Section 34(1)(b) of the Civil Liability Act, 1961 provides that the subsection of the provision dealing with

contributory negligence “shall not operate to defeat any defence arising under a contract or the defence that the plaintiff before the

act complained of agreed to waive his legal rights in respect of it, whether or not for value; but, subject as aforesaid, the provisions

of this subsection shall apply notwithstanding that the defendant might, apart from this subsection, have the defence of voluntary

assumption of risk.” Thus, a defendant in civil proceedings, brought under the law of tort, may escape liability (a) where he or she

shows that by contract he is not liable, or (b) where he or she can show the plaintiff, before the Act agreed to, waived his legal

rights in respect of it. In either case, the burden of establishing the defence falls on the defendant (O’Hanlon v. ESB [1969] I.R. 75,

at 90, per Walsh J.). I return now to the kernel question. Can the sentences be varied?

69. For this, it is necessary to consider s.9 of the Act of 1995 in detail.

Section 9 of the 1995 Act

70. Section 9 of the Act provides:

“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, that a warrant under this Act for the transfer of a person in or out of the State should be revoked or

varied, the Minister may -

(a) in the case of a warrant under section 5 of this Act -

(i) revoke the warrant, or

(ii) vary one or more of the provisions of the warrant;

and

(b) in the case of a warrant under section 7 of this 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 an application under paragraph (b) of subsection (1) of this section, the High Court may make an order referred

to in sub-paragraph (i) and (ii) if it considers it appropriate to do so in order that effect may be given to the provisions

of the Convention.” (Emphasis added)

Inherent Jurisdiction?

71. This provision, as all others in the two Acts, is part of an exhaustive and self-contained, code. There is no indication from the

statutes that, having regard to some legislative, or rules-lacuna, a court could invoke its inherent jurisdiction. It is difficult to identify

the parameters within which the Court might operate in adopting such a course.

72. Furthermore, as touched on earlier, it is evident from s.9, (quoted above), that the power given to a court under s.9 is to vary

the warrant, not the sentence. Thus, unless adapted, the 28 year sentence would remain in being to be enforced. For reasons I now

seek to explain, I conclude that to vary the warrant, in the manner now contended for, would, in fact, run counter to the provisions

of the Acts and of the Convention; as the warrants, thus varied, would not contain the terms of an adapted English sentence.

Variation of the Commencement Date

73. I turn again briefly to consider where variation would have been possible. I address here the first key point identified in the earlier

part of this judgment, that of the commencement date. Hogan J. was prepared to hold that backdating of the commencement date

was possible. I would hold that, in such a situation, variation, hypothetically, would be lawful. This would be because the Irish

authorities neglected to advert to the fact that the sentences had been backdated to the date of arrest in Slovakia. While the

warrants provided a “commencement date”, clearly the ‘commencement date’ recorded should have been backdated to the starting

date, viz. the 5th July, 2001. Section 9 of the Act allows for a variation, of an otherwise valid warrant, to give effect “to the

provisions of the Convention”, properly so-called (Section 9(2)). The final order of the English sentencing court fell to be lawfully

implemented in Ireland. There was nothing incompatible with Irish law, or with the Convention provisions, in amending the

commencement date, per se. To vary the warrants, were they otherwise valid, Hogan J. considered, would be so that “effect may be

given to the provisions of the Convention” (see s.9 (2) above). I think he was correct. The “backdating error” did not affect the

jurisdictional force of the warrant. Again, hypothetically, such a variation would, pro tanto, give effect to the “correspondence”

provisions of Article 10.2 of the Convention, and s.7 (5) of the Act of 1995, viz. that the sentence in the administering state should

approximate as closely as possible to that in the sentencing state. Consequently, I would agree with the High Court finding that a

variation of that type would be permissible. But, such a variation would have to be predicated on an assumption of fundamental

validity of the warrants. The issues which, actually, now arise concern both the fundamental nature of the warrants and whether,

under the statutes, they can be varied at all, if they are not valid in the first place?

Can the reference to “28 years” be now varied?

(a) Void/Ultra Vires

74. Thus, the question which must be asked is whether the warrants were, actually, issued within jurisdiction? On this, one may draw

an analogy with legal authorities concerning orders of the District Court, where such orders incorrectly record the sentences imposed,

and where the sentences actually recorded are in excess of the District Court’s jurisdiction.

75. In Sheehan v. Reilly [1983] 2 I.R. 81, this Court had to consider such an invalidity on the face of a warrant. What was in question

there, were sentences imposed on the applicant which, cumulatively, or in aggregate, exceeded the jurisdictional limit of the District

Court. Finlay C.J. held that the District Court order reciting such sentences were invalid on its face. Thus, the Court ordered the

applicant’s release (see also State de Burca v. O’Luanaigh [1976] I.R. 85, State (Tynan) v. Keane [1968] I.R. 348, and Conlin v.

Patterson [1915] 2 I.R. 169). If a sentence, as described on a warrant, exceeds the statutory maximum provided under law, it is void,

because the sentence exceeded the power of the District Court. I think the principles enunciated there hold force by necessary

analogy. It is not, of course, for this Court to “quash” High Court warrants. But the orders of the High Court, made on the 26th July,

2006, were, in my view, ultra vires the Acts of 1995 and 1997. Absent adaptation, they were issued in excess of jurisdiction. The

jurisdiction vested in that court was predicated upon adaptation, because what is in question here is continuing enforcement of the

sentences as imposed.

(b) Uncertainty

76. There exists a further difficulty as to the content of the warrants. The terms of the warrant are uncertain. Not the least unusual

aspect of this case was the fact that in the High Court, counsel for the authorities advanced several different variants as to the legal

nature and duration of the sentences actually to be served. The legal nature or duration of the sentences was not clear on the face

of the warrants. It was not reasonably ascertainable by resort to other documents. The warrants did not contain such clear

information.

77. In GE v. The Governor of Cloverhill Prison [2011] IESC 41, the Supreme Court, 28th October, 2011 (Denham J., Fennelly J. and

O’Donnell J.), this Court held that the applicant was illegally held because the warrant contained only the following provisions:

“In exercise of the powers conferred on me by Section 5(2) of the Immigration Act, 2003, I direct that pending the

making of arrangements for his/her removal from the State, that:

Gerard E, DOB 28/10/1978

be detained in Dundalk Garda Station, a prescribed place for the purpose of section 5(2)(a) of the Immigration Act, 2003

in the custody of such officer of the Minister for Justice or Member of the Garda Síochána for the time being in charge

of that place.” (para. 21 of the judgment)

The warrant in GE did not show, on its face, an offence, or the length of detention, or the charges, or convictions (if any). The legal

nature or duration of the detention were not ascertainable by reference to the warrant or order. On this, Denham C.J. observed on

behalf of this Court:

“31. 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 be available to, for example, (a) the person in custody, such as the appellant; (b)

the Governor of the Prison, or any other, who is holding a person in custody; and (c) the Court which is requested to

inquire into the custody pursuant to Article 40 of the Constitution.”

78. If there is ambiguity in a warrant, it may be resolved by reference to other documentation such as the Court file. However, if

ambiguity or uncertainty remains, even after having recourse to surrounding documentation, then the detention is unlawful – the

detention is not, in the words of the Constitution, “in accordance with law”. Even now, real doubt exists as to the nature or duration

of the sentences to be served. Was the sentence 28 years (as per the warrant); or the proposed terms referred to in the Department

of Justice correspondence; or 18 years, 8 months; or any one of a number of other periods proposed by counsel for the Governor, in

argument in the High Court? While I express no view on the matter, I would draw attention to a different approach to the sentence

which might be imposed on adaptation, to be found in R v. Read [1989] H.L.(E) p1014. There, the House of Lords concluded that, in

fulfilment of the correspondence principle, a transferred prisoner should be subject to the sentence which most closely corresponded

to the sentence imposed by the sentencing state.

79. Thus far, this judgment has considered the issues of content: excess of jurisdiction and uncertainty. These are both fundamental

defects. It is necessary now to consider whether s.9 permits the type of variation urged by the respondents, so as to allow for a

sentence of 18 years and 8 months.

Interpretation of the operative words of Section 9

80. Do the words of s.9 lend themselves to the type of remedy sought on behalf of the Governor? In my view, the terms “vary”, or

“variation”, cannot be construed as a surrogate for “adapt” in the Statutes of 1995 and 1997. There are, of course, contexts where

the terms ‘vary’ and ‘adapt’ may mean the same. ‘Vary’ may mean to “modify from one state to another”. ‘Adapt’ can mean “making

suitable for a new use or purpose”. (cf. Concise Oxford English Dictionary, 11th Edition). But, context is all. In my view, this is not a

situation where the terms are interchangeable, or where ‘vary’ can be used as a synonym for adapt. The Acts use different

terminology in different places. There is a presumption in interpretation that different words should be given different meanings. A

variation in terminology is taken to denote a different legal meaning (see Bennion Statutory Interpretation, Fourth Edition, Bullsworth,

Section 355, and the authorities there referred to in f.n. 6). In the natural world, a creature may ‘adapt’ to a new environment, but

that creature does not, itself, ‘vary’ to the new environment. An electrical device may be ‘adapted’ for use in continental Europe on a

two prong basis; it is not “varied”. One can, of course, say that a court order may be “varied”, but this depends on that order having

been made within jurisdiction. One can envisage ‘variations’ under s.9 properly arising in a number of scenarios. Under Article 12 of the

Convention each state party may pardon, grant or commute a sentence. Under Article 13, the sentencing state only, has the right to

review a judgment, so as to deal with the question of the length of the sentence or the duration. Article 14 provides that the

administering state shall terminate enforcement of the sentence as soon as it is informed by the sentencing state of any decision or

measure as a result of which the sentence is no longer enforceable. In such circumstances, a variation or revocation might

foreseeably arise. But, critically, what is at issue here are the sentences, as well as the warrants. In my view, there is no basis upon

which the words of s.9 can be used to modify the sentences which required adaptation. Section 9 only allows for revocation or

variation of one or more terms of the warrant – not the sentence.

The Effect of the Variation Proposed

81. The sentences were not adapted. The Governor now seeks variation, not adaptation. The submission is troubling for a further

reason. It raises the question of what, precisely, the Court is being asked to do? Even assuming that the warrants were valid; the

process now suggested would be to retrospectively, and fundamentally, alter the content of the 2006 warrants, but not the

unadapted sentences. Can such a process be countenanced under the Acts? I do not think so. What is proposed might be, unfairly,

characterised as a form of retrospective “quasi-conversion”, substituting, after the elapse of some 8 years, one sentence for another.

Even assuming that s.9 might be used as a substitute for a s.7 adaptation, such a process does not accord with the adaptation

procedure envisaged in the Convention where, on my reading, adaptation should be prospective.

Limitations in Scope of Section 9

82. A further arises. Section 9 is, in its terms, narrow. In a different context, one might conceive the terms ‘vary’ or ‘variation’ might

be interpreted so as to be given a broader meaning. Arguably, used with other suitable words, this might allow for a wider range of

application. Such a legislative objective might, theoretically, be effected, in another case, by treating a new (and ‘varied’) valid

warrant as having taken effect when the original, defective, warrant should have taken effect; or by providing, in statute, that

anything done under the transfer procedure was deemed to have been done under the new “varied” warrant. But, there are no such

provisions in our legislation. Section 9 is, therefore, very limited in scope. I do not agree that a broad construction of the term

‘variation’ as contained in the Act can now act as a remedy, though I readily understand the motivation for such an approach.

Further, the application of the principles of construction now urged for by the Governor would render s.7 of the Act (the important

adaptation provision) as mere surplusage. Proper statutory interpretation leans against such a construction.

Absence of Safeguards

83. More worryingly, the case advanced by the Governor would deprive ‘varied’ warrants of the rights and safeguards which protect

both prisoners and subscribing states. These are set out in the Convention, and contained in s.7. Consequently, s.9, deployed as an

“adaptation” would, to my mind, contain no protection against sentences imposed in Ireland, which do not have regard to the

safeguards set out in s.7 of the Act.

The Construction of Section 9

84. In considering all these interpretive points, it is worth posing a simple rhetorical question: in a hypothetical ‘normal’ application,

made prior to transfer, could the State, either, seek an adaptation, by way of s.7, or variation by s.9? Any answer to the question is

given with hindsight; but it must surely be obvious. The application would be for adaptation. One can readily understand how a

sentence may be adapted or converted prior to a prisoner’s transfer. However, once a transfer has taken place, the only jurisdiction

is, upon applications being made, to vary the provisions of the warrant. The terms are not interchangeable, and do not allow for the

same process to be carried out under a different name. What is intended, clearly, is that a warrant issued by the High Court may “at

any time” be varied after being issued (cf. s.9(i) of the Act). The extension of a broad construction to the term ‘vary’ or ‘variation’ is

inconsistent with the framework of the Act. The State’s position on the construction of the terms ‘vary’ or ‘variation’ is, to my mind,

driven by the regrettable circumstances.

85. For these many reasons, therefore, I conclude s.9 simply cannot be deployed for the purposes now urged for by counsel for the

Governor.

Conclusion and Summary

86. This is a troubling case. The arrangements in question concern the profoundly important question of mutual trust and reciprocity

between two friendly neighbouring states. The respondents pleaded guilty to most serious offences. The respondents asked to be

repatriated, and agreed to be bound by the Irish parole and remission terms. Many would say, that having committed these very

serious crimes, the respondents should be made face the consequence of their actions for the full period of the sentence imposed.

But courts are to interpret and apply the law. I would hold that the process whereby the respondents were placed in detention in

Ireland was fundamentally defective. The warrants were void ab initio. In this highly unusual case, and for the reasons set out, the

Article 40.4 procedure was the correct one. The circumstances are distinct from those in the State (McDonagh) v. Frawley [1978]

I.R. 131, where it was held the courts should be very slow to grant relief by habeas corpus to prisoners serving sentenced imposed by

a court. I do not think the terms ‘adapt’ or ‘vary’ can be interpreted broadly in that context. I would hold that neither s.9 of the Act,

nor the inherent jurisdiction of the Court, can be invoked to cure the jurisdictional deficiencies which are fundamental in these cases.

I make no observation on any application the State may wish to make in the future regarding the respondents. I would, therefore,

dismiss the appeals.