Supreme Court allows appeal permitting High Court to vary transfer warrants under Transfer of Sentenced Persons Acts 1995.

THE SUPREME COURT

Appeal Nos. 429/2014, 427/2014, 430/2014

Denham C.J.

O’Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

Laffoy J.

O’Malley J.

In the matter of an enquiry under Article 40.4.2 of the Constitution of Ireland, 1937

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

Between/

Fintan Paul O’Farrell, Michael Christopher McDonald,

Declan John Rafferty

Applicants/Respondents

and

The Governor of Portlaoise Prison

Respondent/Appellant

Judgment delivered the 12th day of July, 2016 by Denham C.J.

1. This appeal raises a matter of statutory interpretation. The members of the Court are agreed that the warrants issued by the High

Court, pursuant to s. 7 of the Transfer of Sentenced Persons Acts 1995 – 1997, referred to as “the Act of 1995”, are defective. Also,

it is agreed that the sentences stated in the said warrants cannot now be adapted under s. 7(5) of the Act of 1995. Thus, the issue

which the court must address is whether the sentences on the said warrants can be varied pursuant to s. 9(1)(b)(ii) of the Act of

1995.

2. This is an appeal by the Governor of Portlaoise Prison, the respondent/appellant, who is referred to as “the Governor”, from the

orders of the High Court (Hogan J.) made on the 18th June, 2014 and the 26th August, 2014.

3. The appeal was initially listed in the Supreme Court and then transferred to the Court of Appeal, pursuant to Article 64.3.1 of the

Constitution. Subsequently, on applications to the Court, it was determined (Denham C.J., Hardiman J., Clarke J) on the 13th March,

2015, pursuant to Article 64.3.3 of the Constitution, that in each of the three cases, brought by Fintan Paul O’Farrell, Michael

Christopher McDonald and Declan John Rafferty, the applicants/respondents, who are referred to collectively as “the respondents”,

that the direction be cancelled: [2015] IESCDET 10, [2015] IESCDET 11, [2015] IESCDET 12. The three appeals were case managed

together, and then heard together.

4. The Hon. Mr. Justice Hardiman was a member of the Court which heard the appeal originally. However, judgment had not been

delivered when the untimely death of Mr. Justice Hardiman occurred. Consequently, the appeals were relisted for hearing, on the 6th

May, 2016.

Background

5. On the 2nd May, 2002, in Woolwich Crown Court, in the United Kingdom, the respondents pleaded guilty to offences. These

offences included: (i) conspiracy to cause an explosion; (ii) entering an arrangement to make money or other property available for

the purposes of terrorism; (iii) inviting another to provide money or other property for the purposes of terrorism. The respondents

were sentenced to 30 years for the first said offence, and for the second and third named offences set out above, and another, to

twelve years imprisonment on each of the said offences. The respondents appealed the sentences to the Court of Appeal of England

and Wales, which, on the 15th July, 2005, quashed the sentences of thirty years and substituted sentences of twenty eight years,

and affirmed the other sentences. The High Court found that these varied sentences were a final order of the Courts of England and

Wales.

6. The respondents applied for a transfer to Ireland pursuant to the Act of 1995.

7. On the 28th July, 2006, the High Court issued warrants pursuant to s. 7 of the Act of 1995, providing for the transfer of the

respondents to Ireland. These warrants issued by the High Court referred to the sentences in England and Wales as (a) twenty eight

years imprisonment for the conspiracy to cause explosions, (b) twelve years imprisonment concurrent to the said twenty eight years

imprisonment, for each of the other offences. The date of commencement of the sentences was stated to be the 7th May, 2002.

8. In a judgment delivered on the 26th August, 2014, [2014] IEHC 416, the High Court (Hogan J.) addressed a number of issues, and

concluded that the detention of the first named respondent could not be shown to be lawful as a valid warrant could not be produced

to justify the detention. In the circumstances the High Court said that it could direct the release of the respondent in accordance

with Article 40.4.2 of the Constitution. A similar order was made for each of the other respondents.

9. Thus, on the 26th August, 2014, the High Court ordered that the warrants in the proceedings were defective; liberty was given to

the Governor to bring a notice of motion returnable for the 1st September, 2014, and the proceedings were adjourned for mention to

the 3rd September, 2014.

10. The State (the Governor, the Minister for Justice and Equality, Ireland and the Attorney General) brought a motion for the 1st

September, 2014 seeking:

“1. An order pursuant to s. 9(1)(b)(ii) of the Transfer of Sentenced Persons Acts 1995 – 1997, 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;”

11. In other words, the State sought to vary the original warrants. This was following the judgment of Hogan J. where he had held

that the warrants were defective. But, he stated in his judgment of the of the 11th September, 2014, [2014] IEHC 420:

“I took the further view, however, that, having regard to the nature of the errors, the interests of the sentencing State

and the otherwise very full description of the offences contained in the warrants, it would be appropriate that the

Minister should have the opportunity, should she thought it appropriate to do so, to apply to this Court under s. 9(1)(b)

of the 1995 Act to have the terms of the existing s. 7 warrant varied so that the duration of the sentence was correctly

recorded and the defective warrant amended. I adjourned the present Article 40.4.2 proceedings pending the outcome of

this application which the Minister has now made to this Court.”

12. The learned High Court judge discussed the difference between the power to adapt and the power to vary a warrant under the

Act of 1995.

Defect in the Date of Commencement of the Sentence

13. A defect in the s. 7 warrant was the date of the commencement of the sentence. The High Court took the view that this error

could be corrected by the making of a variation order under s. 9(1) of the 2005 Act. The learned trial judge stated that such a

corrective order is akin to an order under the Slip Rule (O. 28 r. 11).

Defect in the Sentence

14. The defect in the sentence referred to was then addressed. Counsel for the State submitted that the sentence could be varied,

reflecting the nature of the English sentence, as interpreted in Sweeney v. Governor of Loughan House Open Centre [2014] IESC 42,

[2014] 2 I.R. 732, from a sentence of twenty eight years to one of eighteen years and eight months. However, the High Court held:-

“ …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 (the text of which is set out below). 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 an 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.”

Decision

15. The issue for decision is whether the High Court erred in holding that it did not have power to vary the warrant in relation to the

defect in the sentence. Thus, it is a question of the interpretation of the statute, in particular the analysis of the power to vary.

The Act of 1995

16. The Act of 1995 enabled the State to ratify the Council of Europe’s Convention on the Transfer of Sentenced Persons, 1983,

which is referred to as “the Convention”. The Convention was ratified by Ireland on the 31st July, 1995, and came into force on 1st

November, 1995. The purpose of the Convention is to enable prisoners serve their sentences, imposed abroad, in their home State.

Thus, it is for the benefit of prisoners, so that they may serve their sentences where the language and culture are their own, and

where they are near family and friends. Thus, a sentenced person may be transferred pursuant to the Convention only on the

conditions, inter alia, (i) that the person is a national of the administering State; (ii) that the person still has at least six months of

the sentence to serve or it is indeterminate; (iv) that the sentenced person consents to the transfer; (v) that the acts or omissions

for which the sentence was imposed would constitute an offence in the administering State: and (vi) that the sentencing and

administering States agree to the transfer.

Adaption

17. Section 7 of the Act of 1995 was amended in the Transfer of Sentenced Persons (Amendment) Act, 1997, to make specific

provision for the adaption of the sentence by the High Court. It provides:-

“1.—The Transfer of Sentenced Persons Act, 1995, is hereby amended in section 7—

(a) by the substitution of the following subsections for subsections (5) and (6):

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

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

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

similar to the offence for which the sentence was imposed.

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

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

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

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

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

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

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

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

and shall not, in any event, either—

(i) aggravate it, or

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

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

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

shall not, in any event, either—

(i) aggravate it, or

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

and

(b) by the insertion of the following subsection after subsection (9):

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

such sentence.”

Thus, the Oireachtas addresses more fully the issue of the adaption of a warrant. It is clear that such adaption takes place only at

the time of the original application to the High Court. Thus, the warrants the subject of this appeal may not now be adapted.

18. In accordance with the law of England and Wales, the sentences in issue were to be served partly by a term of imprisonment and

partly in the community. Applying an analysis of Sweeney, the High Court held that the sentences imposed in England and Wales of

twenty eight years were a sentence of approximately eighteen years and eight months, whereas the sentences set out on the

warrant under s. 7 of the Act of 1995 were of twenty eight years. The learned High Court judge held that the s. 7 warrants which

provided for a sentence of twenty eight years, were defective.

Vary

19. Thus, the issue then became, and is now, whether the warrants may be varied. The High Court analysed the difference between

the power to adapt a warrant under s. 7 and the power to vary under s. 9, and concluded that the Court did not have the power to

vary the sentences on the warrants.

20. Section 9 of the Act of 1995 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 subparagraph (i) or (ii) of that paragraph if it considers it appropriate to do so in order that effect

may be given to the provisions of the Convention.”

This section has not been revisited by the Oireachtas.

21. This section applies “at any time”, thus it is not limited, as the adaption provision is, to the initial process.

22. Under this section a court may make profound decisions. A court may revoke a warrant. It is thus a fundamental jurisdiction to

exercise a power provided by the legislation.

23. In the same section the Court is given power to vary the provisions of a warrant. It is thus aligned with another fundamental

power, and I consider it to be of an equal stature.

24. In this section the Court is given jurisdiction to revoke or vary the provisions of a warrant. The procedure is protected by being

provided for within the jurisdiction of the Court, being the administration of justice by a judge.

25. Further, the jurisdiction given to the Court is given “in order that effect may be given to the provisions of the Convention”. It

follows that the section may be interpreted so as to give effect to the Convention, which is for the benefit of the prisoners. It is clear

that the Court is given the power to vary warrants. It may be presumed that this is to give effect to the operation of the transfer of

prisoners in accordance with law.

26. The provisions for adaption, and revoking or varying, are made for different times. Adaption is a provision which may be invoked

initially. The warrant for the transfer then enables the transfer of prisoners. The fact that a different word is used for a jurisdiction

and power at a different time reflects that it is occurring at a later time. Thus, events may have occurred that require the revocation

of a warrant, which would not have occurred on the initial application. Similarly, circumstances may arise which require an application

to a court to vary a warrant. The fundamental authority to imprison the prisoner, the initial sentence, was imposed by the sentencing

State. The warrants that follow are to enable the application of the Convention. This is administered by the State to which the

prisoner wishes to transfer. The terms “adapt” and “vary” relate to different times. It is consistent with the Convention that at both

such times the warrant could be altered so as to give effect to the Convention. The Act is premised on the grounds that it is to give

effect to the provisions of the Convention.

27. The provisions of the Act of 1995 enable the process of transferring a prisoner, so as to give effect to the Convention.

28. I do not consider that the use of different words limits the power to vary. The fact that the term “adapt” is used in relation to

the initial process and the power to adapt a warrant, does not reduce the power to “vary”. It is entirely logical that the term “adapt”

be used in relation to the initial processing of the warrant, and that, once that has occurred the legislation speaks of to “vary” the

warrant.

29. In its ordinary meaning the word “vary” is clear. It is a departure from a former position. The term “vary” means to change or to

alter, and this plain meaning is endorsed by the definitions from the dictionaries. The word “vary” is defined in the Concise Oxford

English Dictionary, Tenth Edition, Revised, as:-

“1. differ in size, degree or nature from something else of the same general class.

2. change from one form or state to another.”

30. The fact that earlier in the Act, and earlier in time, when the warrant is being initiated in the administering State, the Court is

given jurisdiction to “adapt” a warrant, does not limit the jurisdiction of the Court at a later stage to “vary” the warrant. This is a

powerful jurisdiction, given in conjunction with the jurisdiction to revoke a warrant. It is a jurisdiction to give effect to the

Convention. The Convention is for the benefit of prisoners. Thus, the Act of 1995 gives to the Court the power to give effect to the

Convention, and so, in the overall picture, to benefit prisoners.

Conclusion

31. Consequently, I am satisfied that the High Court has jurisdiction to vary the warrants in issue. I agree with the High Court that

the date of commencement on the warrants could be varied, but I disagree with the distinguished judge that the power to vary is

akin to the Slip Rule. The power to vary is aligned to the power to revoke a warrant, and gives jurisdiction to vary in the manner

requested by the State in this case.

32. I am in agreement with the joint judgment of O’Donnell J. and Clarke J.

33. For the reasons given I would allow the appeal.