Supreme Court dismisses appeals as Irish courts lack power to adapt UK prison sentences without UK consent.

THE SUPREME COURT

Denham C.J.

O’Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

Laffoy J.

O’Malley J.

BETWEEN

[Appeal No. 429/2014 and 440/2014]

Fintan O’Farrell

Applicant/Respondent

and

Governor of Portlaoise Prison

Respondent/Appellant

[Appeal No. 427/2014 and 441/2014]

Michael Christopher McDonald

Applicant/Respondent

and

Governor of Portlaoise Prison

Respondent/Appellant

BETWEEN

[Appeal No. 430/2014 and 439/2014]

BETWEEN

Declan John Rafferty

[Applicant/Respondent]

Governor of Portlaoise Prison

Respondent/Appellant

Judgment of Ms. Justice Laffoy delivered the 12th day of July, 2016

Residual controversy

1. Each of the applicants/respondents (the Respondents) on these appeals had spent approximately thirteen years in prison in the

United Kingdom and in this jurisdiction when, on 18th June, 2014, each brought an application for an inquiry into the legality of his

detention pursuant to Article 40.4.2 of the Constitution. The detention of the Respondents in Portlaoise Prison in this jurisdiction had

been on foot of warrants issued pursuant to s. 7 of the Transfer of Sentenced Persons Acts 1995 (the Act of 1995). as amended by

the Transfer of Sentenced Persons (Amendment) Act 1997 (the Act of 1997), which will hereafter be referred to collectively as the

“Amended Act of 1995”. It is obvious that what triggered those applications under Article 40.4.2 was the decision of this Court in

Sweeney v. The Governor of Loughan House Open Centre & Ors. [2014] 2 I.R. 732 (Sweeney). While the judgments of this Court in

Sweeney were delivered on 3rd July, 2014, it is clear from the judgment of Murray J. (at para. 47) that the Court decided on the

hearing of the appeal in Sweeney on 28th May, 2014 that the appellant’s appeal should be allowed and that reasons for the decision

would be given later.

2. The underlying chronology and the factual and legal circumstances on these appeals differ from the circumstances in Sweeney, in

particular, due to the fact that the sentence in issue in Sweeney had been imposed by a court in England and Wales after the coming

into operation of the Criminal Justice Act 2003 (the U.K. Act of 2003), whereas the Respondents on this appeal were sentenced by a

court in England and Wales prior to the coming into operation of that Act. In broad terms, the application of the U.K. Act of 2003 to

the sentenced person in Sweeney (Mr. Sweeney) and to the Respondents differed in that, under the law of England and Wales, the

former, who had been sentenced to sixteen years imprisonment, would have been entitled to be released on licence having served

half of his sentence, whereas each of the Respondents would have been entitled to be released on licence having served two-thirds

of his sentence. Nonetheless, the decision of this Court in Sweeney is determinative of some of the issues which arise on the

Respondents’ applications under Article 40, although, significantly, it does not address other issues which arise. As a consequence, in

the judgments delivered by the other members of the Court on these appeals, there is consensus on many of the issues which have

arisen. Significantly, there is consensus that the warrants issued pursuant to s. 7 of the Amended Act of 1995, on foot of which the

Respondents were detained in prison in this jurisdiction, are defective. There is also consensus that in 2014 the High Court did not

have jurisdiction to adapt the warrants because –

(a) an application for adaptation pursuant to s. 7(5) of the Amended Act of 1995 would have had to have been made at

the time of the application to the High Court under s. 7(1) for the issue of the warrants, that is to say, prior to the

transfer of the Respondents to this jurisdiction pursuant to the provisions of the Amended Act of 1995; and

(b) the High Court does not have inherent jurisdiction to adapt.

3. The High Court’s jurisdiction in relation to a warrant issued under the Amended Act of 1995 is exclusively governed by the statutory

provisions thereby created, although those provisions must be applied having regard to the provisions of the Council of Europe

Convention on the Transfer of Sentenced Persons done in Strasbourg on 21st March, 1983 (the Convention), which they reflect. It is

the proper construction of the provisions relevant to the issues raised on the appeal which falls to be determined by this Court. While,

as noted, there is consensus that, on the facts, the application of s. 7(5) could not be invoked in 2014, the residual controversy

which remains is whether s. 9 of the Amended Act of 1995 confers jurisdiction on the High Court, and on this Court on appeal, to vary

the warrants in issue in relation to the Respondents, so as to cure defects which have been identified in each of them. It is that issue

which I propose to consider.

4. Before considering the relevant provisions of the Amended Act of 1995 in the context of the Convention, I propose outlining and

making some observations on the process in the High Court and the judgments delivered by Hogan J. (the trial judge) in the High

Court. As the factual, procedural and legal circumstances in relation to the transfer and detention in this jurisdiction of the

Respondents are clearly and comprehensively outlined in the judgments of the other members of the Court, those matters will be

reiterated only to the extent that is necessary.

Process in and judgments of the High Court

5. As has been adverted to earlier, the applications to the High Court were applications under Article 40.4.2 of the Constitution. The

function of the trial judge was to determine whether each of the Respondents was being detained in prison in this jurisdiction in

accordance with law and, if not satisfied that such was the case, to order the release of each. It may be worth noting that the

application at first instance in Sweeney was an application, by way of judicial review, for a declaration that the warrant in issue under

which Mr. Sweeney was detained was ultra vires the provisions of the Amended Act of 1995 and the principles contained in the

Convention, as is recorded in the judgment of Murray J. (at para. 4). As noted by Clarke J. in his judgment (at para. 53), the

substance of the case which Mr. Sweeney brought to the High Court was designed to seek that the warrant be quashed and that he

be immediately released.

6. The trial judge delivered his first judgment on the application of one of the Respondents, Fintan Paul O’Farrell (Mr. O’Farrell), on

26th August, 2014 ([2014] IEHC 416) (the first judgment). Following a comprehensive analysis of the sentencing system in England

and Wales, of the decision in Sweeney and its implications for the application before him, and of the relevant provisions of the

Amended Act of 1995, including s. 7 and s. 9, the trial judge summarised his conclusions (at para. 44 et seq.). The essential elements

of those conclusions for present purposes were the following:

(a) The final sentence imposed on Mr. O’Farrell by the Court of England and Wales was in truth a sentence of

approximately 18 years and 8 months. Inasmuch as the s. 7 warrant issued by the High Court on the 28th July, 2006,

under which Mr. Farrell was detained, recorded the sentence as one of 28 years, the warrant was defective.

(b) As the sentencing system in England and Wales is so appreciably different from that which obtains in this jurisdiction,

the sentence in Mr. O’Farrell’s case should more properly have been adapted pursuant to s. 7(5) of the Amended Act of

1995. There was a necessity for the sentence to be adapted at the time of the transfer of Mr. O’Farrell to this

jurisdiction.

(c) The High Court can direct the release of an applicant on an application under Article 40.4.2 “where the warrant is so

defective that no proper basis for the current detention has been made by the detainer”. While the trial judge, at that

stage in the process, characterised the defects in Mr. O’Farrell’s case as falling “into an intermediate category”, he found

that they were too serious to be dismissed as harmless. However, he concluded that the defects were not at that stage

“so pervasive as to destroy the validity” of the warrant.

7. On the basis of those findings, the trial judge then stated (at para. 50) that he proposed to adjourn the application under Article

40.4.2 to enable the Minister for Justice and Equality (the Minister) to apply separately to the High Court pursuant to s. 9(1)(b) of

the Amended Act of 1995 –

“to vary the existing s. 7 order so that the English sentence can be properly adapted into our law and, especially, that

the duration and commencement of the sentence be properly recorded”.

Although rule 3(1) of Order 128 of the Rules of the Superior Courts (the Rules), which governs applications under s. 9 of the Amended

Act of 1995, provides that an application by the Minister pursuant to s. 9(1)(b) shall be made ex parte to the Court, it was

specifically directed that any application brought by the Minister should be on notice to Mr. O’Farrell, which was appropriate, because

rule 3(2) provides that an order may be made by the Court for service upon the sentenced person concerned, where that person is

likely to be adversely affected in any way by the making of an order under s. 9. The trial judge made it clear that he envisaged that

the Minister’s application, if brought, would be determined expeditiously, which, in fact, occurred.

8. The order of the High Court on the O’Farrell application under Article 40 dated 26th August, 2014 recited that the Court had found

that the warrant as it stood was defective. In the curial part of the order it was ordered that –

(a) the respondent on the application before the High Court, that is to say, the appellant on these appeals, being the

Governor of Portlaoise Prison (the Governor), should have liberty to bring a notice of motion in the “herein proceedings”

returnable on Monday, 1st September, 2014; and

(b) the balance of the “herein proceedings” be adjourned to 3rd September, 2014.

9. An application to the High Court under s. 9(1)(b) of the Amended Act of 1995 was brought in relation to each of the Respondents,

but it was brought by the Minister, not the Governor, and it was not brought in the Article 40 proceedings (Record No. 2014/1062SS)

to which the Minister was not a party. The application to vary the warrant in relation to each of the Respondents was brought in

plenary proceedings which had been initiated by each of the Respondents. In those proceedings declaratory relief had been sought,

including declarations that the detention of the relevant respondent was unlawful and also declarations that the Amended Act of 1995

or, alternatively, that certain provisions thereof, including s. 7 and s. 9, were unlawful having regard to the provisions of the

Constitution. By way of illustration, Mr. O’Farrell had initiated plenary proceedings in which he was plaintiff and in which the Governor,

the Minister, Ireland and the Attorney General were defendants by plenary summons issued on 25th June, 2014 (Record No.

2014/5582P).

10. The application of the Minister in relation to Mr. O’Farrell’s detention was brought by notice of motion dated 28th August, 2014 in

those plenary proceedings and it sought relief in the following very general and imprecise terms:

“An Order pursuant to S. 9(1)(b)(ii) of the [Amended Act of 1995], varying the Warrant issued by this Honourable Court

on the 9th August, 2006 in order to give effect to the provisions of the European Convention on the Transfer of

Sentenced Persons.”

The relevant warrant in fact had been issued pursuant to an order of the High Court made on, and was dated, 28th July, 2006, but it

was corrected on 9th August, 2006 by the substitution of the Governor for the Governor of Mountjoy Prison as the person to whom it

was addressed.

11. The Minister’s motion was expressed to be grounded on the affidavit of Gerard McDonagh sworn on 28th August, 2014. That

affidavit exhibited what was referred to as “a draft amended warrant”, the purpose of which was obviously to outline the variations

which the Minister required to be made pursuant to s. 9, which was undoubtedly necessary because of the lack of specificity and

precision in the formulation of the relief sought in the notice of motion. Of particular significance is that certain variations were

proposed in relation to the detailed particulars of the sentences for three crimes as had been outlined in the original warrant of 28th

July, 2006, which particulars are quoted in the judgment of MacMenamin J. and need not be repeated here. These variations included:

(a) the substitution in describing the sentences for “Sentences in Sentencing State” of the following:

“Sentences of Imprisonment Imposed in Sentencing State”.

(b) the substitution for the sentence for the first crime as stated in the original warrant, which was stated to be

“(Twenty Eight Years Imprisonment for Conspiracy to Cause Explosions at (i) above)”, of the following:

“Eighteen (18) years and eight (8) months imprisonment for the offences (sic) at (i) above”; and

(c) the addition after the date of the commencement of the sentences, which was stated to be 7th May, 2002, of the

following words:

“with sentence backdated to commence on the 5th July, 2001”.

12. The outcome of that application was determined in the second judgment of the trial judge delivered on 11th September, 2014

([2014] IEHC 420) (the second judgment). In that judgment the trial judge considered the difference between a power to adapt under

s. 7(5), which he stated “implies a power to modify, or even transform the nature of the sentence at issue”, and the power to vary

under s. 9. It is clear that he considered that the function of the High Court on the application under s. 9 as being to determine

whether “the defects exhibited in the present s. 7 warrant can be cured by means of a variation order under s. 9”. He then

considered the application under s. 9 to vary the warrant by reference to two defects:

(a) that the warrant incorrectly stated that the date of commencement of the sentences imposed on Mr. O’Farrell was

7th May, 2002, rather than the correct date, 5th July, 2001; and

(b) that the warrant stated that the sentence imposed in the sentencing State on Mr. O’Farrell for the first of the three

crimes listed was “Twenty Eight Years Imprisonment” and that the Minister was seeking that the duration of the sentence

be changed from that to eighteen years and eight months.

13. As regards the variation sought of the defect referred to at (a) in para. 12 above, the trial judge stated (at para. 16) that such a

corrective order was somewhat akin to the making of an order under the slip rule (Order 28, rule 11 of the Rules) and that the nature

of the change could properly be regarded as being appropriate to a variation order. Further, the making of such an order could be said

to be giving effect to the provisions of the Convention, because it enables the duration of the sentence actually imposed by the

sentencing State to be accurately reflected in the warrant under s. 7. For the foregoing reasons, he made an order pursuant to s.

9(1)(b) varying the s. 7 warrant in order to reflect the correct commencement date of the sentence. 14. In relation to the defect

outlined at (b) in para. 12 above, the trial judge had explained the source of that defect in his first judgment (at para. 11) as follows:

“It is, however, common case between the parties that, having regard to the relevant law of England and Wales, the

applicant was automatically entitled to release on licence following completion of two thirds of his sentence. In effect,

the applicant was required under that law to serve the one third balance of his sentence in the community, although

there are circumstances whereby that law provides that a prisoner can be returned to prison during the course of that

final third of his sentence.”

A sentence of eighteen years and eight months duration, as suggested by the Minister, represents two-thirds of a sentence of

twenty eight years.

15. The trial judge observed in relation to the change in the duration of the sentence sought by the Minister (at para. 20):

“. . . I find myself driven to the conclusion that the English sentence, accordingly, requires to be adapted by means of an

order under s. 7(5) of the 1995 Act . . . Unless the terms ‘adapt’ and ‘vary’ were to be treated as interchangeable by the

court – something which would effectively elide and collapse the distinction so carefully drawn by the Oireachtas in the

1995 Act itself – the necessary modification of the English sentence positively requires the making of an adaptation order,

so that it can be transformed into the equivalent sentence for the purposes of Irish law. This cannot be done by means of

the making of a variation order under s. 9(1), as that power does not extend to the essential modification of the sentence

imposed which would be required in turn to effect such a modification of the s. 7 warrant. Put another way, the power to

vary cannot be exercised as a substitute for the power to adapt.”

16. The trial judge also noted that, as a matter of Irish law, the maximum sentence which could be imposed for the first crime

itemised in the warrant, conspiracy to cause an explosion, is twenty years. In this connection, he referred to s. 7(6)(a), as amended,

which expressly stipulates that the Court on an application under s. 7(5)(a), as amended, shall not either aggravate the sentence or

exceed the maximum penalty prescribed by the law of the State for a similar offence, pointing to the fact that s. 9 contains no

corresponding protection of that kind. The trial judge went on to state (at para. 23):

“It will be seen, therefore, that, upon reading the 1995 Act as a whole and, particularly, comparing the terms of s. 7(5)

and s. 7(6) on the one hand with that of s. 9(1) on the other, one is coerced to the conclusion that a change of this kind

which modifies the nature of the foreign sentence requires the making of an adaptation order and is not something which

can be dealt with by means of a variation order under s. 9(1).”

That, in my view, is the nub of the decision of the High Court as regards the residual controversy on the appeals, although the trial

judge went on to consider whether the Court could still make an adaptation order under s. 7(5).

17. After a detailed analysis of s. 7(5) in the overall context of s. 7 in its entirety, the trial judge concluded that the power to adapt

under s. 7(5) may only be exercised by the High Court when the application for a warrant is being made under s. 7(1) and,

specifically, the power to adapt cannot be exercised at a later stage. As I have recorded earlier, on the appeals there is no dispute in

relation to that conclusion. The trial judge also reached another conclusion with which I agree and which I understand not to be

disputed by the Governor, namely, that the Court has no inherent jurisdiction to rectify a warrant.

18. The foregoing conclusions and observations were summarised by the trial judge (at para. 29) as follows:

“The situation can be summed up by saying that the English sentence in question is ineffective in law unless it had 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

[Governor].”

As a consequence, the trial judge held that the then current detention of Mr. O’Farrell could not be shown to be lawful, as a valid

warrant could not be produced to justify his detention, so that he had no alternative but to direct his release in accordance with

Article 40.4.2. Indeed, all of the Respondents were released in consequence of the decision of the trial judge. Whether those

conclusions were correct necessitates an in-depth analysis of the provisions of the Amended Act of 1995 in the context of the

Convention.

Provisions of the Amended Act of 1995 relevant to residual controversy

General observations

19. As a broad view of the provisions of the Amended Act of 1995, in the context of the provisions of the Convention as a whole, has

been taken in judgments of the other members of the Court, at this juncture I propose concentrating on outlining the provisions which

I consider are specifically relevant to properly interpreting the nature and extent of the jurisdiction conferred on the High Court by s.

9(2), although, of course, it will be necessary to consider the proper construction of s. 9(2) in the overall context of the Amended

Act of 1995 later. Having said that, it is appropriate at this stage to make some general observations as to how closely linked the

terminology used in the relevant provisions of the Amended Act of 1995 is to the corresponding terminology in the Convention. For

example, while there is a slight difference of terminology in defining “sentence” in each, the substance of the definition is the same in

each. In Article 1 of the Convention “sentence” is defined as meaning:

“. . . 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.”

The only variations in the definition in s. 1 of the Act of 1995 are the substitution of the words “the commission of an offence” for “a

criminal offence” and the inclusion of a tribunal as well as a court. Moreover, the same terminology is used in the Act of 1995 as is

used in the Convention in defining “the sentencing State”, that is to say, the Convention state in which the person is sentenced, and

in defining “the administering State”, that is to say, the Convention state to which the person may be transferred.

20. The Amended Act of 1995 makes provision for both applications to the Minister to transfer out of the State to another Convention

state, which applications are dealt with in s. 4, and requests for transfer into the State, such requests being made to the Minister

under s. 6. A request under s. 6 is to “serve the sentence or the balance of the sentence in the State”. The jurisdiction conferred on

the Minister by s. 6 is to “consent to a request” subject to compliance with the requirements of that section. Section 7 deals with

the issue of warrants for the bringing of persons into the State, where the Minister has consented to a request under s. 6 to transfer

into the State a sentenced person to serve the sentence or the balance of the sentence in the State. The provisions of s. 7 require

to be considered in some detail.

Section 7

21. Sub-section (1) of s. 7 provides:

“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.”

So the authority given by the warrant issued by the High Court on the Minister’s application relates to –

(a) bringing the sentenced person into the State,

(b) taking that person to the specified place of detention in the State, and

(c) detaining the person in the State at the specified place.

22. Sub-section (2) then sets out by reference to s. 6(3) and the requirements therein specified, which the Minister has to be

satisfied are fulfilled before consent is given to a request under s. 6, which requirements the High Court must also be satisfied have

been fulfilled before the High Court can issue a warrant. Those requirements correspond to the conditions for transfer stipulated in

Article 3 of the Convention. It is then provided that the High Court “shall . . . issue a warrant authorising the bringing of the

sentenced person into the State . . .” While counsel for the Governor placed emphasis on the word “shall” in subs. (2), the operation

of that sub-section is, by virtue of the provisions of subs. (4), subject to subss. (5) and (6) in circumstances where those sub-

sections apply. No issue has arisen as to the application, or the fulfilment, of the requirements referred to in subs. (2) in relation to

any of the Respondents. Sub-section (3) sets out the power of the High Court to specify the place or places of detention and its

application does not give rise to any issue on these appeals.

23. Sub-section (4) deals with the effect of a warrant issued under s. 7 and provides:

“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.”

In short, what is to be authorised by the warrant is “continued enforcement” of the sentence both in its “legal nature” and “duration”.

Continued enforcement is one of the two procedures provided for in the Convention at Article 9 for giving effect to the transfer to the

administering State, the other being conversion of the sentence. That the effect of the warrant issued under s. 7 is expressly subject

to subs. (5) and subs. (6) is of considerable importance on these appeals in the determination of the extent of the jurisdiction

conferred by s. 9 in the context of the amended Act of 1995 as a whole, having regard to the provisions of Article 10 of the

Convention. By contrast, neither s. 7(5) and (6) nor Article 10 were considered by this Court to be of particular relevance to the

determination of the issue which arose in Sweeney.

24. Viewing s. 7 from the perspective of the Convention, the template for the authority conferred by the Oireachtas by virtue of

subss. (5) and (6) is Article 10.2 thereof. Article 10.1 provides that in the case of continued enforcement –

“. . . the administering State shall be bound by the legal nature and the duration of the sentence as determined by the

sentencing State.”

However, that is qualified in Article 10.2, which provides:

“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.”

25. Accordingly, while Article 10.2 makes provision for an adaptation process where necessary, when the administering State is

implementing the continued enforcement of the sentence by availing of power to adapt the sentence, in addition to the requirement

that the sentence as adapted shall, “as to its nature”, correspond as far as possible to the sentence to be enforced, that is to say,

the sentence imposed by the sentencing State, Article 10.2 imposes limitations on the manner in which the administering State may

effect such adaptation. Those limitations are the requirements that the sentence as adapted, by its nature or duration, –

(a) shall not aggravate the sentence imposed by the sentencing State, and

(b) shall not exceed the maximum sentence prescribed by the law of the administering State.

26. The power to adapt provided for in Article 10.2. of the Convention is given statutory force in subss. (5) and (6) of s. 7. Sub-

section (5), as originally enacted, conferred a discretion on the High Court to adapt the sentence where “by its legal nature or

duration” it was incompatible with the law of the State. Under subs. (6) of s. 7, as originally enacted, if an adaptation order was

made by the Court, the requirement to correspond “as far as practicable” was imposed and the limitations in Article 10.2 were

mandatory in relation to both the legal nature of the sentence and its duration. However, the Act of 1997 substituted the current

subs. (5) and subs. (6), as set out in s. 1 thereof, for subs. (5) and subs. (6) of s. 7 in their original form. In providing for the

adaptation of the sentence by the High Court, the amended provisions identify and distinguish two distinct circumstances in which

the power to adapt is conferred on, and exercisable by, the High Court.

27. The first circumstance is where the sentence is by its “legal nature” incompatible with the law of the State. That circumstance is

addressed in subs. (5)(a), which, as substituted by s. 1 of the Act of 1997, provides:

“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.”

In reality, the amendment introduced in the Act of 1997 did not alter, either procedurally or in substance, the jurisdiction of the High

Court under subs. (5) as originally enacted to adapt “the legal nature of the sentence”. The power thereby conferred on the High

Court arises on “an application to the High Court” under subs. (1). In other words, it is clear that the High Court has a discretion on

hearing the application for a warrant under subs. (1) to adapt the legal nature of the sentence in accordance with subs. (5)(a).

28. However, in relation to the second circumstance, which is where the sentence by its “duration” is incompatible with the law of

the State and which is addressed in subs. (5)(b), since its substitution by the Act of 1997 the position is different to that enacted in

subs. (5) in its original form. Sub-section (5)(b) now provides:

“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.”

On a comparison of paragraph (b) with paragraph (a) in their current form and with subs. (5) as originally enacted, what is clearly

apparent is that the effect of the amendment of subs. (5) is that, unless the Minister, who has absolute discretion in this regard,

includes in the application under subs. (1), but not at a later stage, an application to adapt the duration of the sentence, the High

Court has no jurisdiction to make an order to that effect.

29. Both of the distinct circumstances addressed in subs. (5) are also addressed, although separately, in subs. (6), as substituted by

s. 1 of the Act of 1997, reflecting, with slight variation, the last two sentences in Article 10.2. The first circumstance, which relates

to the legal nature of the sentence, is dealt with in subs. (6)(a), which provides:

“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.”

The second circumstance, which relates to the duration of the sentence, is dealt with in subs. (6)(b). In fact, that provision is in

similar terms to subs. (6)(a), in that it provides for a similar requirement to “correspond” as is contained in paragraph (a), although

the requirement to correspond is only stipulated in Article 10.2 “[a]s to its nature”. The inclusion of the requirement of

correspondence of duration could be regarded as either superfluous or inconsistent having regard to what follows. What follows in

subs. (6) is that it also stipulates that similar limitations as are set out in sub-paragraphs (i) and (ii) of subs. (6)(a) shall apply, where

the “duration of the sentence” is adapted under para. (b) of subs. (5). Of course, the significant distinction between the

circumstances addressed in paragraph (a) and paragraph (b) is that adaptation of the duration of the sentence will only arise if the

Minister, who has an absolute discretion in this regard, has applied for adaptation at the outset in the s. 7(1) application to the

Court.

30. Section 1 of the Act of 1997 also inserted an additional sub-section into s. 7, subs. (10), which provides:

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

sentence.”

That provision was obviously intended to put beyond doubt the distinction between, and the different treatment of, the “legal

nature”, on the one hand, and the “duration”, on the other hand, of the sentence in the application of the jurisdiction of the High

Court to adapt a sentence on the issuing of a warrant under s. 7 to bring a sentenced person into the State.

31. In what has been described by counsel for Mr. O’Farrell in their outline written submissions as “a very troubling submission”,

counsel for the Governor in their written legal submissions set out the Minister’s position in relation to subss. (5) and (6) of s. 7 in

their current form. It is stated that s. 7 has an internal coherence and it is submitted that, read as a whole, it provides for an

application to be made at the absolute discretion of the Minister to adapt the duration of the sentence imposed, subject to the

restriction, inter alia, that it is not to exceed the maximum sentence prescribed by Irish law, which for the most serious offence in the

present case was twenty years for conspiracy to cause an explosion. The Governor’s submission then elaborates on the Minister’s

position as follows:

“In the Minister’s submission, that prohibition only applies, if the Court on the application of the Minister, adapts the

duration of the sentence. The Oireachtas clearly envisaged a situation where the sentence to be enforced exceeded the

maximum that could be imposed in this jurisdiction. The purpose of s. 7(5)(b) as amended, is to provide that the Minister

can choose not to bring an application to adapt a sentence that exceeds the maximum that could be imposed in this

jurisdiction. Without this amendment, transfers such as the [transfer of the Respondents] would be unlikely to obtain the

consent of the sentencing State. The effect of s. 7(5)(b) is that it is lawful to enforce a sentence handed down in the

sentencing State that exceeded the maximum that could be imposed for the same offence in this State. It would

therefore be lawful to enforce the twenty eight year sentence imposed upon the applicants if such sentence is compatible

with Irish law.”

The second and third sentences in that quotation are particularly noteworthy.

32. An analysis of the amendment of subss. (5) and (6) of s. 7 of the Act of 1997 suggests that the purpose of the amendment was

indeed as counsel for the Minister suggested in the second and third sentences in the above quotation. That is borne out by the

commentary in the annotated version of the Act of 1997 referred to by MacMenamin J. in his judgment (Irish Current Law Statutes

Annotated, ICLSA R. 62: August 1998), in which the annotations are authored by Professor Kevin Boyle. Having put the amendment in

its historical context by stating that, while “the specific case of the U.K. sentenced Republican prisoners was the immediate cause of

the measure, there was a general problem that states may be unwilling to transfer Irish prisoners unless the original sentence remains

unchanged”, and having referred to the humanitarian objectives of the legislation, it is stated:

“The amendment allows the Minister to negotiate transfers in cases where countries insist on the serving of the original

sentence, while at the same time the mechanism is in place under the Act for adapting the duration of sentences to Irish

norms, where the other country raises no objection.”

33. It is unnecessary to consider the concerns of counsel for Mr. O’Farrell arising from the foregoing “very troubling submission”, which

concerns are premised on the proposition that the Minister in 2006 intended to give effect to a sentence of twenty eight years

imprisonment and that the warrant issued under s. 7 by the High Court reflected that reality. The reason why it is not necessary to

do so is because immediately following the passage in the submissions on behalf of the Governor, which I have quoted above, it is

stated that, by virtue of the decision of this Court in Sweeney, –

“. . . only the custodial portion of the sentence constitutes a ‘sentence’ within the meaning of the legislation and

accordingly, the sentence of imprisonment imposed in this case was of 18 years and 8 months simpliciter and, therefore,

did not exceed the maximum of 20 years in any event.”

That, presumably, was the Minister’s rationale for seeking the variation of the warrant pursuant to s. 9 of the Amended Act of 1995

which would substitute eighteen years and eight months imprisonment for twenty eight years imprisonment, which was stated in the

particulars in the original warrant opposite “Sentences in the Sentencing State” as being the sentence for the first offence.

34. While not accepting that the passage quoted in para. 33 above is a correct statement of the law, in the light of the judgments in

Sweeney neither the Governor nor the Minister could have avoided making that concession. In his judgment in Sweeney, Murray J.

stated as follows (at para. 46):

“In any event, it is quite clear, as a matter of English law, that once the appellant completed 8 years of his sentence of

imprisonment he was then entitled, by operation of law, to be freed from custody. The question of his recall to prison

could only arise if he was in breach of the terms of his licensed release. Such a sentence cannot, in my view, be

characterised as a sentence to a period of loss of liberty of 16 rather than 8 years within the meaning of either Article 1

of the Convention, or s.1 of the Act of 1995.”

Further, in his judgment in Sweeney, Clarke J. held that Mr. Sweeney was entitled to be released having served eight years of his

sentence. He stated (at para. 82):

“For those reasons, I was satisfied that the legal nature of the sentence imposed on Mr. Sweeney in England and Wales

was one which provided for 8 years imprisonment followed by 8 years in the community on terms and subject to recall. In

the light of the evidence, it does not seem to me to be possible to construe that sentence as being one of 16 years

imprisonment in the sense in which that term is used in the 1995 Act, even though that is the way in which the sentence

was described in the various documents to which reference has been made.”

The reference in that passage to the evidence, is a reference to expert affidavit evidence of English law.

35. The applicant in Sweeney had been convicted in the year 2006 and, as has been recorded earlier, unlike the Respondents on

these appeals, he had the benefit of the U.K. Act of 2003 at the time of his conviction. Moreover, the entire eight year period, being

half of the sentence of sixteen years imposed on him, had elapsed at the time of the hearing of the appeal in this Court and this Court

decided that he should be released. The period of eighteen years and eight months, which is equivalent to two-thirds of the sentence

of twenty eight years and which the Governor and the Minister accept is the maximum period running from 5th July, 2001 for which

the Respondents can be detained in prison in this jurisdiction, taking it at face value and not applying any other consideration, had

not elapsed when the application under Article 40 was before the High Court, nor has it yet elapsed. While a further complication lurks

in the background, that is to say, whether the Respondents have earned remission in this jurisdiction and, if so, to what extent, my

understanding is that even factoring in such remission as could be earned, the relevant period has still not elapsed. Accordingly, on

this appeal the obvious solution to remedy the problem resulting from the defect in the warrant which was available to the Court in

Sweeney, to order the immediate release of Mr. Sweeney because the duration of the custodial sentence there had elapsed, was not

available because of the Respondents’ circumstances.

36. Before leaving s. 7, the following observations are pertinent. First, an application under subs. (2) of s. 7 is made to the High Court

on the application of the Minister and there is nothing in the section to indicate that it is to be made ex parte. However, rule 2 of

Order 128 of the Rules provides that it shall be made ex parte. Unlike rule 3 in relation to an application under s. 9, rule 2 does not

give the High Court a discretion to direct that notice of the application be given to a person likely to be adversely affected, which

seems to be consistent with the provisions of s. 7. In fact, the application under s. 7(1) in relation to each of the Respondents was

made ex parte in July 2006 and their transfer into the State was given effect to after the order was made by the High Court on foot

of that application. Presumably, any of the Respondents, if unhappy with the outcome of the application under s. 7, could have

decided not to transfer to this jurisdiction. Secondly, when the warrant is issued under s. 7 its effect, by virtue of subs. (4) of s. 7,

which is quoted above, is that, subject to subss. (5) to (7), it has “the same force and effect as a warrant imposing a sentence

following conviction by that court”. I understand the words “that court” to refer to the High Court as the central criminal court.

37. Having considered the relevant provisions of s. 7, it is now necessary to consider s. 9 in detail. The intervening section, s. 8,

deals with the operation of warrants under s. 7. That section, which is premised on there being in place a valid non-defective

warrant, is of no particular relevance to the issues which arise on these appeals.

Section 9

38. Section 9 of the Amended Act of 1995 deals with the revocation and variation of warrants and it applies both to a warrant to

transfer a person out of the State and a warrant issued under s. 7 to transfer a person into the State. Sub-section (1), insofar as it

applies to a warrant under s. 7, provides:

“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 . . . the State should be revoked or varied, the

Minister may –

(a) . . .

(b) in the case of a warrant under s. 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.”

Sub-section (2) provides that, on an application under para. (b) of subs. (1), 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.”

39. As outlined at the beginning, the residual controversy is whether s. 9 confers jurisdiction on the High Court, and on this Court on

appeal, to vary the s. 7 warrants issued on 28th July, 2006 in the manner sought by the Minister and proposed to be ordered in the

joint judgment of O’Donnell J. and Clarke J. (at para. 9.11), that is to say, to provide for imprisonment for a period of days calculated

by eighteen years and eight months less the period served in England and the period served in Ireland plus remission earned in this

jurisdiction. It may be observed that the formula suggested in the joint judgment differs ex facie from the wording of the terms of the

variation which the Minister sought by reference to the draft amended warrant exhibited in Mr. McDonagh’s affidavit. Having regard to

the wording of the terms of the varied warrant as suggested in that exhibit, what the Minister was seeking was to have both the legal

nature and the duration of the sentence imposed by the sentencing State fundamentally changed. What the Minister sought was that

the varied warrant would describe the sentences in the sentencing State as “Sentences of Imprisonment Imposed by the Sentencing

State” and would describe the duration of the sentence for the first crime as eighteen years and eight months. That description

merely includes the requisite custody period in accordance with the U.K. Act of 2003, that is to say, as regards each of the

Respondents, two-thirds of his sentence, but not the period of release on licence with the possibility of recall as applicable in

accordance with the law of England and Wales. That raises the question whether the formula suggested in the joint judgment,

although worded differently, is in substance any different from the terms of the variation sought by the Minister. In substance it is

not, in that it merely makes it easier to identify the end point of the varied period of detention sought by the Minister and it properly

records that remission earned must be factored in in identifying the end point.

40. Therefore, the core issue, which must now be considered, is whether s. 9 confers jurisdiction on the High Court to make the

fundamental changes sought by the Minister to the warrants issued under s. 7 in 2006 on the motion to vary.

41. Before addressing that issue, it is convenient to consider submissions which were made by counsel for one of the Respondents,

Declan John Rafferty (Mr. Rafferty), on the re-hearing of the appeal, which focused on the sequence of the provisions of the

amended Act of 1995 dealing with transfers into the State, and their proper application on these appeals, having regard to the

judgments in Sweeney. Therefore, I propose to take an overview of ss. 6 and 7 in the light of those submissions.

Overview of sections 6 and 7

42. Section 6 provides that the Minister may accede to a request either by the sentencing State or by the sentenced person to

“serve the sentence or the balance of the sentence in the State”. On acceding to such a request, the Minister is directed by s. 7(1)

to apply to the High Court for the issue of a warrant authorising, inter alia, the bringing of the sentenced person into the State. The

High Court, in turn, is directed by s. 7(2) to issue such a warrant if it is satisfied that the requirements stipulated in that subsection

have been fulfilled. Where a warrant is issued, its effect under s. 7(4) is to “authorise the continued enforcement by the State of the

sentence . . . in its legal nature and duration”, subject, however, to the provisions of, inter alia, subss. (5) and (6) of s. 7. As

counsel for Mr. Rafferty emphasised, in a situation such as arose in the case of each of the Respondents, where the sentence is not

adapted, the only effect of a warrant issued under s. 7 is to authorise “the continued enforcement” of the sentence or the balance of

the sentence imposed by the sentencing State in its legal nature and duration.

43. When the High Court, on foot of the Minister’s application, on 28th July, 2006 made orders authorising the bringing of the

Respondents into the State, taking the example of Mr. Rafferty, the sentence imposed by the sentencing State, in accordance with

the law of the sentencing State, to use the words of Lord Bingham quoted by Murray J. in Sweeney (at para. 41) was a “composite

package”. The composite package comprised two components: a period of imprisonment equivalent to two-thirds of the sentence;

and a period of release on licence in the community equivalent to the remaining one-third of the sentence. Counsel for Mr. Rafferty

submitted that, in those prevailing circumstances, all the High Court had jurisdiction to do on 28th July, 2006 was to issue a warrant

authorising the continued enforcement of both components of the sentence. However, in the absence of adaptation, the second

component could not be enforced in this jurisdiction, because, as Murray J. stated in Sweeney (at para. 43), “there is no provision in

Irish law for such a form of licensed release”. Counsel identified, in my view correctly, the source of the problem with which this Court

is now confronted as being that the High Court could not, in the absence of adaptation, make the appropriate order in accordance

with s. 7(4), that is to say, an order issuing a warrant which authorised the “continued enforcement” of both components of the

relevant sentence. Indeed, he suggested that, if the legal nature of the sentence is incompatible with the law of the State, there

must be either adaptation or refusal by the High Court to issue a warrant. To focus here on the warrant, it was submitted, is wrong;

rather, the source of the problem is the nature of the sentence and the failure in 2006 to address it in the order of the High Court.

44. In general, insofar as the issues which arise on these appeals are concerned, I think those submissions in relation to the proper

application of s. 7(4) are correct. Again taking the example of Mr. Rafferty, as a matter of law, the only jurisdiction the Court had on

28th July, 2006, by virtue of the operation of s. 7(4), was to order the issuance of a warrant which would have the effect of

authorising the continued enforcement of the sentence imposed in England and Wales on Mr. Rafferty in its legal nature and duration.

In the absence of an order adapting that sentence, the High Court had no jurisdiction to issue a warrant merely giving effect to part

of the sentence, that is to say, authorising the detention of Mr. Rafferty in prison in the State for a period equivalent to two-thirds of

the sentence imposed by the sentencing State, while ignoring the remainder of the sentence, that is to say, the on licence in the

community component.

45. To purport to do so would be contrary to the provisions of s. 7. To purport to do so would also be in contravention of the

Convention and, in particular, Article 10.1 thereof, which is a factor which, in my view, is of prime importance on the application of s.

9. Against that background, I will consider the application of s. 9 on the Minister’s motion to vary.

Application of s. 9 on the Minister’s motion to vary

46. Insofar as they are applicable to the situation which arises here, that is the detention of the Respondents in the State under

warrants issued under the Amended Act of 1995, the combined effect of subs. (1) and (2) of s. 9 is that –

(a) the Minister may apply to the High Court for an order varying one or more of the provisions of the warrant under para.

(b) of subs. (1), if it appears appropriate in order that effect may be given to the provisions of the Convention, and the

Minister may do so “at any time”, and

(b) the Court, on such application, may make an order of the type sought, if it considers it appropriate to do so in order

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

47. It is important to emphasise that the jurisdiction conferred on the Court is to “vary” and what it may vary is “one or more of the

provisions of the warrant”, not the sentence. If the variation of the provisions of the warrant sought by the Minister under s. 9 will, if

granted, result in the nature or duration of the sentence the enforcement of which this State, as administering State, is continuing in

accordance with the Convention and with s. 7(4) of the Amended Act of 1995, being varied in a manner which should have been dealt

with by way of adaptation when the application under s. 7(1) was before the High Court, a question which arises is whether it could

have been the intention of the Oireachtas that the High Court would have jurisdiction to sanction such variation under s. 9, so as to

be free from the limitations to which the Court’s jurisdiction to adapt a sentence is subject. Those limitations are the limitation on the

time for bringing an application to adapt and the limitations imposed in s. 7(6).

48. It is also important to emphasise that the criterion which governs whether the Minister is entitled to apply for an order to vary a

provision of the warrant is whether it is appropriate in order that effect may be given to the provisions of the Convention and the

same criterion applies to the exercise by the High Court of its discretion. An alternative jurisdiction is given to the High Court in s.

9(2), which must be exercised by reference to the same criterion: to revoke the warrant in its entirety. In order to determine the

intention of the Oireachtas in conferring the jurisdiction conferred by s. 9(2) on the High Court, it is necessary to consider the role of

“the provisions of the Convention” in the overall interpretation and application of the provisions of the Amended Act of 1995.

49. As is pointed out by MacMenamin J. in his judgment, the Act of 1995 did not incorporate or implement the Convention. What the

Amended Act of 1995 does, as the long title makes clear, is that it makes provision “for the transfer between the State and places

outside the State of persons for the time being detained in prisons, under orders made in the course of the exercise by courts and

tribunals of their criminal jurisdiction”. The provision made in the Amended Act of 1995 is not confined to transfers between this

jurisdiction and states which are parties to the Convention. The expression “Convention state” is defined in s. 1 of the Amended Act

of 1995 as meaning a state to which the Convention applies or “a state or territory outside the State designated by the Minister for

Foreign Affairs under s. 2 of the Act”. Section 2 empowers the Minister for Foreign Affairs, where the State is a party to international

arrangements providing for the transfer between the State and a state or territory that is not a party to the Convention, to

“designate that state or territory to be a Convention state” for the purposes of the Act of 1995. It is reasonable to infer, on the

proper construction of the Amended Act of 1995 and, indeed, of the Act of 1995 as originally enacted, as a whole, that the objective

of the Oireachtas in regulating the transfer of sentenced persons out of and into the State by reference to certain provisions of the

Convention was to use those provisions as a template or framework for such regulation, which seems a sensible approach, given that

the State intended to become a party to the Convention and, in fact, ratified the Convention in 1995 after the Act of 1995 was

enacted.

50. However, what is clear is that, as stated at the outset (in para. 3), the authority of the Minister and the jurisdiction conferred on

the Court by the Amended Act of 1995 is wholly derived from that Act. In interpreting a particular provision of the Amended Act of

1995, it may have to be read by reference to a specific provision of the Convention, or in the context of the Convention as a whole,

to ascertain its proper construction. That is consistent with what was stated by both Murray J. and Clarke J. in Sweeney. Murray J.

stated (at para. 26):

“The Convention is given effect to in domestic law by the [Amended Act of 1995]. As Acts implementing an international

convention they fall to be interpreted in the light of the provisions of the Convention (Bourke v. Attorney General & Anor

[1972] I.R. 36; Crilly v. Farrington & Ors. [2002] 1 ILRM 161).”

In his judgment, Clarke J. stated (at para. 61):

“It follows that, in interpreting the [Amended Act of 1995], the courts should endeavour, if possible, to give it a meaning

which conforms with Ireland's obligations under the Convention. However, that is the only effect of the Convention on the

legal rights and obligations which arise in this case. The Convention is not part of Irish law. There are no relevant

European Union measures which affect the rights and obligations which arise in this case.”

Having said that, it is important not to overlook the inter-jurisdictional dimension which the Amended Act of 1995 legislates for and

not to overlook the interests of another jurisdiction, which engages with the State in the transfer of prisoners in accordance with its

provisions, in having those provisions properly applied in accordance with law.

51. It is convenient at this juncture to recapitulate on what the factual position was in relation to the Respondents, when the

Minister applied to the Court in July 2006 and the Court issued the warrants dated 28th July, 2006 under s. 7. The sentence imposed

in the sentencing State on each of the Respondents for the most serious offence was twenty eight years from 5th July, 2001.

However, in accordance with the law of the sentencing State, as enacted in the U.K. Act of 2003, the sentence was subject to

automatic release on licence in the community once two-thirds of the custodial sentence was served. Although there was express

power conferred on the Minister under s. 7(5)(b) to apply to the High Court, on the application under s. 7(1) for the warrant, for an

order adapting the duration of the sentence, no such application was made. Nor did the Court, as it had jurisdiction to do, adapt the

legal nature of the sentence. I agree with the view expressed by the trial judge in the first judgment (at para. 21) that the sentence

imposed by the sentencing State “should in fact more properly have been ‘adapted’ under s. 7(5) of the 1995 Act”. However, as that

was not done, the only effect which the warrants issued in relation to the Respondents could have had, by virtue of s. 7(4), was “to

authorise the continued enforcement . . . of the sentence . . . imposed by the sentencing State in its legal nature and duration, with

due regard to any remission of sentence accrued in the sentencing State”. In the absence of adaptation by the Court pursuant to s.

7(5), applying the provisions of the Amended Act of 1995, the continued enforcement of each sentence could only take effect under

the law of the State without the protective and mitigating features mandated in s. 7(6). It is against that background that it is

necessary to construe s. 9(1)(b) and (2).

52. On a literal interpretation of s. 9, an order “varying” one or more of the provisions of the warrant means an order changing or

altering one or more provisions of the warrant. An obvious question which that raises is what are the provisions of the warrant which

may be varied having regard to the terms of the warrants in issue here. They must be the provisions which implement what the Court

is authorised to do in s. 7(2), for example, the detention in custody of the sentenced person named in the warrant at the place

specified, the effect of which provision is governed by s. 7(4). The crucial question on the interpretation of s. 9(1)(b) and (2) for

present purposes, however, is whether it could have been the intention of the Oireachtas that it would be appropriate for the Minister

or the High Court to conclude that, in order that effect be given to the provisions of the Convention, at a time eight years after the

warrants had issued and the Respondents had been transferred to this jurisdiction, the High Court should have power to vary the

warrants so as to provide for imprisonment for a period of days calculated by eighteen years and eight months less the period served

in England and the period served in Ireland, allowance being made for the remission earned in this jurisdiction only, thus ignoring the

other component of the sentence, namely, the on licence in the community component. In addressing that question, in my view,

regard must be had to the fact that such a variation would, in reality, be a variation of the sentence imposed by the sentencing

State. It is debatable whether the type of outcome such variation would produce would have been permissible on adaptation under s.

7(5). Apart from noting that the limitations provided for in s. 7(6), which would have had to have been embodied in such an

adaptation order, would not have presented a problem having regard to the particular circumstances here, it would be inappropriate

to express a view on such a speculative matter.

53. Adopting the approach adopted by the trial judge in the second judgment in the passage (at para. 23) quoted above, I am also

coerced to the conclusion that the variations sought by the Minister, which modify, and indeed fundamentally change, from an overall

perspective both the legal nature and duration of the sentence imposed by the sentencing State, in totally eliminating the release on

licence in the community component of the sentence, required the making of an adaptation order in 2006 and cannot be dealt with by

means of an order to vary the warrant under s. 9(1) many years after the transfer has taken place. Further, reiterating the

observations made above (at para. 52), which even question whether such a variation could be achieved on an adaptation order

under s. 7, in my view, it is appropriate to conclude that the High Court did not have jurisdiction under s. 9 to make the variations

which the Minister was seeking.

54. Underlying that conclusion is the fundamental premise that it is the provisions of the Amended Act of 1995 which give effect to

the provisions of the Convention in the manner in which the Oireachtas saw fit to give effect to them. Nonetheless, I think it is

prudent to consider the provisions of the Convention to assess whether the existence of s. 9, in order to enable a variation order of

the type sought by the Minister to be made, is necessary to give overall effect to the Convention or to any specific provision of it.

Alternatively, is the existence of s. 9 necessary for some other purpose to be achieved in order to give effect to the provisions of the

Convention? It must be emphasised that in conducting this exercise what are pertinent are the provisions to which the Oireachtas has

chosen to give effect and the manner in which it has given effect to them in the Amended Act of 1995, insofar as they impose

obligations on an administering State which takes a transfer in.

55. Not having made provision in law for it, the State has excluded the application of the conversion of sentence procedure, which is

an available alternative to the continued enforcement procedure, both of which are provided for in Article 9.1 of the Convention, as it

was entitled to do in accordance with Article 3.3 thereof. Accordingly, only the continued enforcement procedure, including the

entitlement to adapt in accordance with Article 10.2, is available to the State in relation to the transfer into, and the detention in the

State, of the Respondents. By virtue of Article 9.3, which is quoted later, the enforcement of the sentence by the State is governed

by the law of the State, as “administering State”, and the State alone is competent to take all appropriate decisions. In relation to

the Respondents, the adaptation procedure was not availed of, as it could have been, and, therefore, in accordance with the

provisions of the Convention, continued enforcement takes effect as provided for in Article 10.1 in accordance with s. 7(4). There is

nothing in the Convention which suggests that, not having implemented the adaptation procedure in accordance with the law of the

State, an alternative option open to the State is to vary the nature and duration of the sentence years after the transfer into this

jurisdiction has been effected. That being the case, the question which arises is how could it be contended that such a variation,

which has the effect of eliminating one of the components of the sentence, is appropriate in order to give effect to the provisions of

the Convention. In my view, it is not appropriate.

56. There are, however, other provisions of the Convention which point to the necessity for a provision such as s. 9 for other

purposes. The provision of the Convention which appears to be of most relevance to the existence of s. 9 is Article 12, which is

headed “Pardon, amnesty, commutation” and provides:

“Each Party may grant pardon, amnesty or commutation of the sentence in accordance with its Constitution or other

laws.”

As regards a transfer into the State, that Article and the possibility of a subsequent pardon or amnesty, seems to be reflected in s.

7(8) of the Amended Act of 1995, which provides:

“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.”

Another provision of the Convention which may also be of relevance is Article 13, which provides that the sentencing State alone

shall have the right to decide on any application for review of the judgment. Obviously, if the Respondents had been pardoned in

accordance with the law of the sentencing State, that is to say, the law of England and Wales, while still being detained in Portlaoise

Prison on foot of the warrants issued on 28th July, 2006, it would be appropriate for the Minister to apply for, and for the High Court

to grant, an order revoking those warrants, to enable the Respondents to be released in accordance with the pardon. Similarly, if,

while being detained in prison in this jurisdiction, the sentences imposed on the Respondents were commuted in accordance with the

law of the sentencing State, that is to say, the law of England and Wales, it would be appropriate for the Minister to apply for, and

for the High Court to grant, an order varying the existing orders in a manner consistent with the commutation. In short, in my view, it

is reasonable to surmise that it was those types of situations which were in contemplation by the Oireachtas in making provision for

the revocation of a warrant, where s. 7(8) would be applicable, or the variation of a warrant in accordance with s. 9.

57. Another type of situation which may have been in contemplation by the Oireachtas is a situation where for some unforeseeable

reason it has been necessary that the sentenced person, who can no longer be detained in the place specified in the warrant, be

transferred to a different place of detention. Varying the warrant in those circumstances to provide for detention in another prison

would be appropriate in order to give effect to the provisions of the Convention. Similarly, the Oireachtas may have anticipated the

type of error which occurred on each of the warrants in relation to the Respondents – the misstatement of the commencement of

each of the sentences. Varying the warrant to correct such a misstatement would clearly be appropriate to give effect to the

provisions of the Convention. Accordingly, the consensus in the judgments that there is jurisdiction to vary the commencement date

in the warrants in relation to the Respondents, in my view, is correct.

58. Taking all of the foregoing factors into account, I am satisfied that, other than the mistake in relation to the date of the

commencement of the sentence, the High Court had no jurisdiction to vary any of the provisions of the warrants in the manner

applied for by the Minister, which I reiterate would constitute a variation of the sentence imposed by the sentencing State, and the

trial judge properly refused to accede to the Minister’s application under s. 9. Further I am satisfied that the trial judge was correct in

concluding that the High Court was helpless to effect curative action which would be necessary to remedy the defective warrant

under which Mr. O’Farrell was then being detained by the Governor in Portlaoise Prison. However, although, given that conclusion, I

consider that the legal principle on the general application of Article 40 established in two authorities relied on by the Governor to

secure the detention of the Respondents for the remainder of the sentence of eighteen years and eight months, has no application to

the circumstances of the Respondents, nonetheless, I propose considering those authorities in the context of the Respondents’

position as of now.

Dillon/Brien

59. Not only did counsel for the Governor submit that the warrants in relation to the Respondents should be varied to indicate that

the term they should serve is eighteen years and eight months, subject to such remission or parole as they may earn or be granted

during the course of that period, but it was also submitted on behalf of the Governor that this Court ought to issue new warrants for

the arrest of the Respondents so that they may be taken into custody to serve the balance of the custodial sentences which would

be reflected in the varied warrants. It was submitted that the Court not only has the inherent power, but is also under a duty, to

order the re-arrest of the Respondents on fresh warrants, citing the decision of the Supreme Court in The State (Dillon) v. Kelly

[1970] I.R. 174 (Dillon). That authority and a slightly earlier decision of the Supreme Court in The State (Brien) v. Kelly [1970] I.R. 69

(Brien) are referred to in the joint judgment of O’Donnell J. and Clarke J. in the context of a suggestion that the position of the

Respondents on this appeal is akin to cases where a prisoner challenges a warrant transferring him or her from one prison to another,

because the Respondents are persons whom it has been finally determined should be imprisoned and the only issue is where that

imprisonment should take place. At a superficial level, that is factually the case, but at a more fundamental level, in my view, there is

no analogy at all between the position of the Respondents and the position of the prosecutors in the Dillon and Brien cases. The

position of the Respondents in relation to their transfer from a place of detention in England and Wales to a place of detention in the

State is governed by the provisions of the Amended Act of 1995 interpreted, as far as possible, in accordance with the provisions of

the Convention.

60. That there is no such analogy can be illustrated by reference to the case of Brien. In April 1966 Brien was sentenced by the

Circuit Court judge to three years detention in St. Patrick’s Institution having pleaded guilty to certain charges against him. While he

was in St. Patrick’s Institution, in August 1966 the Minister for Justice, pursuant to a statutory power vested in him, made an order

that Brien be transferred to Portlaoise Prison and that order was implemented. The Supreme Court held that the Minister’s order was

in excess of the authority which the relevant statutory powers conferred on him and, accordingly, that order was quashed. However,

as is clear from the passage from the judgment of Ó Dálaigh C.J. quoted in the joint judgment of O’Donnell J. and Clarke J. (at para.

9.5), the Supreme Court made it clear that the result was that Brien would be released from his custody in Portlaoise, but that was

not to say that he should be at liberty. Ó Dálaigh C.J. pointed out that there was a valid court order sentencing him to three years

detention in St. Patrick’s Institution and that he must serve out the balance of that sentence, and that the Supreme Court was

prepared to order that he be taken to St. Patrick’s Institution to complete the sentence of three years detention imposed upon him

by the Circuit Court.

61. What might colloquially be referred to as the redeeming feature in the Brien case was the existence of the underlying valid court

order at the relevant time which imposed the sentence of detention in St. Patrick’s Institution. Likewise, in the Dillon case, there was

a valid underlying warrant of the Court of Criminal Appeal on which Dillon’s re-arrest could be based, notwithstanding that the transfer

order under which he was then held in a prison was invalid. The reason, in my view, why the logic of the decisions in Brien and Dillon

cannot be applied on these appeals is because there is no underlying valid order of a court in this jurisdiction on the basis of which

the Respondents may be re-arrested and be lodged in Portlaoise Prison for the balance of the sentence of eighteen years and eight

months. I reach that conclusion on the basis of what I consider to be the correct interpretation of s. 7(4), which has been quoted

earlier. On the authority of Dillon and Brien, if, in respect of each Respondent, there was an underlying order of the High Court

authorising the issuance of an non-defective warrant for the detention of each for eighteen years and eight months, notwithstanding

that each of the warrants issued by the High Court on 28th July, 2006 was defective, a correct warrant could be issued to replace

each of the defective warrants. In those circumstances, by virtue of s. 7(4), each of the replacement warrants would have the same

effect as the warrant of the High Court imposing a sentence following conviction by that court. However, there is no such underlying

order of the High Court in respect of any of the Respondents.

62. Moreover, for the following reasons:

(a) that the sentence imposed on the Respondents cannot now be adapted under s. 7 and that the Court has no inherent

jurisdiction to adapt the sentences; and

(b) that s. 9 does not confer jurisdiction to vary the warrants in the manner sought by the Minister;

no jurisdiction exists at this point in time which might be deployed to create valid warrants which would reflect the power conferred

on the Court by s. 7(4), namely, to authorise the “continued enforcement of the sentence . . . in its legal nature and duration”.

63. The sentence imposed on each of the Respondents by the Court of the sentencing State, in my view, cannot be treated by a

court in this jurisdiction after the implementation of the transfer as “a valid court order” in the sense that the underlying order of the

Circuit Court in the Brien case was held by the Supreme Court to be “a valid court order sentencing him to three years detention in

St. Patricks”. Apart from the following factors:

(a) that the order of the Court imposing sentences on each of the Respondents is not an order of a court of this

jurisdiction; and

(b) that, on the proper interpretation of s. 7, the warrants issued by order of the High Court made on 28th July, 2006

cannot be regarded as being of “the same force and effect as a warrant imposing a sentence following conviction” by the

High Court;

which are crucial factors, nonetheless, it is helpful to consider the status of the order of the court imposing the sentences, that is to

say, the Court of England and Wales, as between the sentencing State and this State, as administering State, under the Convention.

64. Article 8 of the Convention sets out the effect of transfer for the sentencing State and provides:

“1. The taking into charge of the sentenced person by the authorities of the administering State shall have the effect of

suspending the enforcement of the sentence in the sentencing State.

2. The sentencing State may no longer enforce the sentence if the administering State considers enforcement of the

sentence to have been completed.”

Further, in accordance with Article 9.3, the enforcement of the sentence is now governed by the law of this jurisdiction. That Article

provides:

“The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be

competent to take all appropriate decisions.”

Under the law of the State, the Amended Act of 1995, in the circumstances which exist on these appeals the State has no

jurisdiction to rectify the mistakes made in July 2006. The State, having taken the Respondents in charge in accordance with the

order of the High Court and the warrants dated 28th July, 2006, and the State not having implemented the adaptation procedure, and

there being no legal route under Irish law by virtue of which the legal nature or duration of the sentence can be re-defined in this

jurisdiction now, the State’s power of enforcement of the sentences is exhausted.

65. What was proposed by the Minister on the application to vary in the High Court, which counsel for the Respondents characterised

as an attempt to seek an adaptation order by the back door, is not a solution to the problem created by the failure to seek an

adaptation order in 2006, which was permissible under the Amended Act of 1995. The fundamental point is that the power conferred

on the High Court to vary “one or more of the provisions of the warrant” does not authorise the High Court to vary either the legal

nature or the duration of the sentence imposed by the sentencing State, irrespective of the implications of that solution not being

available for the sentencing State or the administering State.

66. In summary, in view of the failure, in the course of the legal process governed by the Amended Act of 1995 authorising the

transfer of the Respondents into the State in July 2006 to have the sentences adapted, unfortunately, there is no legal basis for

giving force and effect to the sentences imposed on the Respondents by the sentencing State, England and Wales, at this juncture.

In particular, there is no legal basis for the issuing of warrants for the re-arrest of the Respondents to serve the remainder of the

sentences of eighteen years and eight months.

Order

67. Having found that the warrants cannot now be adapted under s. 7 or under the Court’s inherent jurisdiction, or varied in the

manner which the Minister seeks under s. 9 of the Amended Act of 1995, there is no procedure available by virtue of which they can

be amended. Accordingly, the trial judge was correct in ordering the release of each of the Respondents. That being the case, the

order I would propose should be made is an order dismissing the Governor’s appeal.

68. For the avoidance of doubt, being conscious of the existence of the plenary proceedings, no view is expressed in this judgment on

the application of the Respondents to vary the first judgment of the trial judge, which was delivered on 26th August, 2014, refusing

to release each of the Respondents at that time under Article 40.4.2°, on the ground that it was erroneous.