Supreme Court dismisses appeals regarding prisoner transfer where UK sentence nature must be determined in UK courts.

THE SUPREME COURT

Denham C.J.

O’Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

Laffoy J.

O’Malley J.

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

Between/

Fintan O’Farrell

Applicant/Respondent

and

Governor of Portlaoise

Respondent/Appellant

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

Between/

Michael Christopher McDonald

Applicant/Respondent

and

Governor of Portlaoise

Respondent/Appellant

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

Between/

Declan John Rafferty

Applicant/Respondent

and

Governor of Portlaoise

Respondent/Appellant

Judgment of O’Donnell and Clarke JJ delivered the 12th July, 2016.

1. Introduction

1.1 Problems have already been encountered in implementing the regime by which sentenced prisoners can be transferred from

England and Wales to Ireland. That regime stems from the Council of Europe Convention on the Transfer of Sentenced Persons (“the

Convention”) and its Irish implementing measure, the Transfer of Sentenced Persons Acts 1995-1997 (“the 1995 Act”). The particular

problems giving rise to these cases stem from a significant change in the nature of sentences imposed in England and Wales which

has occurred as a result of recent legislative measures adopted in that jurisdiction. In particular, the law of England and Wales now

provides that, as a matter of law rather than as a result of the terms of a court order in a particular case, all sentences of

imprisonment over a minimum threshold are to be served partly by actual imprisonment and partly in the community under licence and

subject to recall. It is the implementation of such a sentence within the Irish penal regime which has created difficulties.

1.2 This Court has already given one judgment on the issue, being Sweeney v. The Governor of Loughan House Open Centre & ors

[2014] I.E.S.C. 42 (“Sweeney”). It will be necessary to return to Sweeney in due course. These cases, which clearly were

commenced as a result of that decision, depend on an analysis of what was decided in that case.

1.3 Each of the applicants/respondents in these three connected appeals (“the prisoners”) was sentenced to lengthy periods of

imprisonment in England. The prisoners had travelled to Slovakia in 2001 for the purposes of purchasing very substantial quantities of

arms and explosives for an organisation styling itself the Irish Republican Army or Real IRA. They met on five occasions with individuals

whom they believed represented the then Iraqi government. They wrote out a list which mentioned 5000 kgs of plastic explosive,

2000 detonators, 200 rocket propelled grenades, 500 handguns and also referred to one and a half million dollars to be paid over the

period of half a year. To put this into context, it was explained at their trial that about 1,5 kgs of plastic explosive is used in a car

bomb. In fact, the parties with whom the applicants were dealing were undercover British agents. The prisoners were arrested in

Slovakia and extradited to the United Kingdom. There they were tried and after a lengthy voir dire pleaded guilty to counts including

conspiracy to cause explosions and entering into arrangements to make money and other property available for the purposes of

terrorism. On the 7th of May, 2002, they were sentenced by the trial judge to 30 years imprisonment. On appeal, on the 15th of July,

2005, the Court of Appeal Criminal Division substituted a sentence of 28 years imprisonment. As of that point their convictions

became final and they became eligible for transfer to serve their sentences in Ireland under the provisions of the 1995 Act which as

noted earlier implements in Irish law the provisions of the Convention.

1.4 Solicitors acting on behalf of the prisoners corresponded with the Department of Justice, Equality and Law Reform (as it then was)

pressing for their case to be dealt with urgently and complaining of what were characterised as “unacceptable delays”. On 24th

March, 2006, Mr. Brendan Eiffe, an assistant principal officer in that department, wrote a detailed letter to each of the prisoners

enclosing the relevant legislation and an explanatory leaflet. In particular, the provisions in relation to remission were explained.

There, it was stated that the standard rate of remission in Ireland was one quarter of sentences as opposed to one third as applied in

the UK. The prisoners’ expected date of release under the applicable English law was the 29th of April, 2020, and the letter

continued: “[i]f you consent to a transfer to Ireland, it is likely, given that you will be eligible to earn remission of up to one quarter of

the balance of sentence (as opposed to a rate of one third in the UK), that your final release date will extend beyond 29 April, 2020.”

The letter then went on to give an estimate of a sentence based on a hypothetical transfer date of 1st July, 2006, and which

assumed remission of one quarter and set out in bold print an estimated release date of 20th January, 2022.

1.5 The prisoners applied to be transferred to Ireland under the terms, so far as this jurisdiction is concerned, of the 1995 Act.

Warrants were issued in the High Court providing an apparently lawful basis for the detention of each of the prisoners in Ireland for

the purposes of serving the balance of the sentences imposed in England. However, the difficulty identified by this Court in Sweeney

also applies, but in a more complex way, to the position of each of the prisoners. While it will be necessary to refer to the warrants

under which the prisoners were detained in this jurisdiction in more detail, those warrants (reflecting the terms of the corresponding

English warrants) simply referred to the sentences of 28 years imprisonment ultimately imposed in the English courts without in any

way reflecting the regime for sentencing prisoners in England and Wales to which reference has already been made. The prisoners

were transferred pursuant to those warrants and commenced serving their sentences in Ireland. However, when the decision of this

Court in Sweeney emerged identifying difficulties in the regime for implementing sentences imposed in England and Wales, these

proceedings under Article 40 of the Constitution were commenced seeking an inquiry into the legality of the detention of the

prisoners. As already noted, the issue in their cases is, at least on one view, more complex than that with which the courts were

faced in Sweeney. It was clear on the facts of Sweeney that the applicant in that case had, by the time the matter came before the

courts, already served a period of actual imprisonment which exceeded the period of such actual imprisonment which would have been

required to be served in England under the relevant legislation in that jurisdiction. In the light of the view taken by this Court in

Sweeney as to the proper application of the 1995 Act, it was clear that the applicant in Sweeney was no longer in lawful custody and

this Court required his release. It will be necessary to deal briefly with the form of order made by this Court in Sweeney in due course.

1.6 However, the situation pertaining to the prisoners in all the circumstances of this case is somewhat different. First, unlike the

position which pertained in Sweeney, the relevant English legislation which was in place at the time when each of the prisoners was

sentenced provided that a period of one third of the total sentence should be served in the community under licence and subject to

recall. That contrasts with the equivalent period of one half of the sentence which was relevant in Sweeney as a result of subsequent

amending legislation in England and Wales. More importantly, the period which would have been served by each of the prisoners in

actual custody in England (until April, 2020) has not yet expired. Indeed, even if the standard remission of sentence which would

ordinarily be available in this jurisdiction were applied to that period of actual custody, it would still be the case that questions might

arise as to whether the proper application of Sweeney to the facts of this case would require the release of the prisoners.

1.7 In the High Court, in two judgments, O’Farrell v. Governor of Portlaoise Prison [2014] I.E.H.C. 416 and O’Farrell v. Governor of

Portlaoise Prison (No. 2) [2014] I.E.H.C. 420, Hogan J. ultimately concluded, nonetheless, that the prisoners should be released. The

respondent/appellant (“the Governor”) has appealed to this Court against that finding. In order to fully understand the issues which

were before this Court, it is necessary to set out both the facts, which are not in themselves controversial, and the reasoning of the

trial judge.

2. The Facts

2.1 The background to these proceedings is set out in the judgments of the High Court (Hogan J.) and the uncontroverted evidence

which was before that Court. On 2nd May, 2002, the prisoners pleaded guilty to various serious offences before Woolwich Crown

Court involving counts of terrorism type offences and conspiracy to cause explosions. They were each sentenced to 30 years

imprisonment. The sentences were back-dated to 5th July, 2001, being the date on which the prisoners were originally taken into

custody in Slovakia prior to their extradition to the U.K. That sentence was quashed by the Court of Appeal of England and Wales

(Criminal Division) and was replaced with one of 28 years imprisonment on 15th July, 2005. As Hogan J. noted, “[t]here is no doubt

but that the sentence as so varied constituted a final order of the courts of England and Wales.”

2.2 On 22nd August, 2005, the prisoners applied under the 1995 Act to be transferred to this jurisdiction to serve the balance of their

sentences. In relation to the consent of the prisoners to their transfer, which is a requirement under the 1995 Act, Hogan J. noted in

his first judgment that, as discussed earlier in this judgment, an officer of the Minister for Justice, Equality and Law Reform (now

known as the Minister for Justice and Equality) (“the Minister”) wrote to the prisoners prior to their transfer, in order to draw their

attention to the fact that the standard rate of remission in Ireland was one quarter, as opposed to what was said to be a one third

remission applicable in England and Wales. That correspondence notes that, under the Irish rules, “[t]here is no supervision in the

community of persons released on reaching remission.” On that basis, therefore, it was estimated that the final release date was

20th January, 2022, rather than 29th April, 2020, which was the Minister’s understanding of the likely release date if the prisoners

were to remain in prison in England. Hogan J. noted, at para. 7 of the first judgment, that it was on this basis, therefore, that the

prisoners gave their consent to the transfer on 27th June, 2006.

2.3 On 28th July, 2006, the High Court (Peart J.) acceded to the applications for transfer and ordered that the prisoners be brought

into this jurisdiction to serve the balance of their sentences in Portlaoise prison. Warrants were issued under s.7 of the 1995 Act for

this purpose. The content of the warrant relating to Fintan Paul O’Farrell issued under s.7 of the 1995 Act is set out in full in the

judgment of Hogan J. The warrants in the other cases are, for all relevant purposes, identical. At this point, it is worth pointing out

that there is no material difference between the issues which arise as and between the cases brought respectively by each of the

three prisoners.

2.4 In material part, the warrants provide as follows. Under the heading “Crime”, three offences are detailed: (i) conspiracy to cause

explosions, (ii) inviting another to provide money or property for the purpose of terrorism, and (iii) entering into an arrangement to

make money and property available for terrorism. Under the heading “Sentences in the Sentencing State”, the warrants provide “(a)

Twenty Eight Years Imprisonment for Conspiracy to Cause Explosions at (i) above” and “(b) Twelve years imprisonment, concurrent

to the said Twenty Eight Years Imprisonment, for the offences at (ii) and (iii) above.” The date of commencement of the sentences

provided in the warrants is the 7th May, 2002, which was the date of sentence in Woolwich Crown Court, and is incorrect since that

Court backdated the sentences to the date on which the prisoners were taken into custody. There is little dispute however that, at

least in this respect, the warrants can be varied and thereby corrected.

3. The High Court Judgment

3.1 The prisoners made applications to the High Court under Article 40.4.2 of the Constitution seeking orders for release. On foot of

these applications, the High Court had to consider whether the warrants issued for the transfer of the prisoners from prison in England

to a prison in this jurisdiction were defective, and if so, what the consequences of such defect(s) would be. The prisoners also raised

arguments concerning the constitutionality of s.7 of the 1995 Act itself, namely, whether it is constitutionally permissible to make an

order on an ex parte basis for the detention of a prisoner in accordance with that provision. However, as noted by Hogan J. in his first

judgment at para. 9, although “the language of the Constitution itself expressly envisages that the constitutionality of a law may be

determined in Article 40 proceedings, it is has (sic) often been found more convenient that such issues would be determined in

plenary proceedings following an exchange of pleadings.” Therefore, it was agreed between the parties that this course would be

adopted. Separate plenary proceedings were commenced by each of the prisoners in respect of the constitutional issue (Mr.

O’Farrell’s proceedings bearing record no. 2014 No. 15582P, Mr. McDonald’s proceedings bearing record no. 2014/5580P and Mr.

Rafferty’s proceedings bearing record no. 2014/5581 P) in which the Governor, the Minister, Ireland and the Attorney General were

named as defendants. Meanwhile, it was agreed that Hogan J. would give judgment on all issues relating to the warrants of detention

made on foot of the order of Peart J. of 28th July, 2006. The constitutional issues were adjourned pending the resolution of these first

issues.

3.2 The hearing of the issues relating to the warrants by Hogan J. took place in two stages. At the first stage, Hogan J. considered

matters relating to the warrants of detention made on the 28th July, 2006, under s.7 of the 1995 Act, including the duration of the

sentences set out therein, the content and integrity of the warrants, and the fact that the sentences were purported to have been

continued in this jurisdiction in the manner envisaged by Article 9(1)(a) of the Convention (and reflected in s.7(4) of the 1995 Act)

rather than “adapted” to a sentence prescribed by the law of the administering State (as provided for by Article 9(1)(b) of the

Convention (and reflected in s.7(5) of the 1995 Act)) and then continued . These provisions will be considered in greater detail in due

course as this distinction is at the heart of the second judgment of the High Court. It is worth noting in passing that the Convention

also permitted contracting States to adopt a process known in civil law systems as “exequatur” or “conversion” in which the sentence

becomes converted into a sentence imposed by the receiving State as if the conviction had occurred there. This provision is not

relevant to the present proceedings because Ireland, as it was entitled to, did not opt to make provision for this method of

enforcement.

3.3 At this first stage of the hearing, the trial judge concluded that the sentence imposed by Woolwich Crown Court, as varied by the

Court of Appeal for England and Wales, was “in truth a sentence of approximately 18 years and 8 months” whereas the sentence set

out in the s.7 warrant was one of 28 years. The trial judge held that this was the effect of the judgment of this Court in Sweeney,

where it had been held that the true legal nature and effect of a sentence of 16 years in England was eight years imprisonment and

eight years supervision in the community. There was no equivalent to supervision in the community in Irish law. Accordingly, Mr.

Sweeney had already served eight years imprisonment and was entitled to be released. The consequence of the decision in Sweeney

when applied to these cases meant that the “legal nature and effect” of a sentence pronounced as 28 years was a sentence of 18

years and eight months’ imprisonment and nine years and four months’ supervision in the community for which there was no equivalent

in Irish law. Therefore, the trial judge held that, inasmuch as the s.7 warrant issued by the High Court in July, 2006, records that

sentence as one of 28 years, it is, to that extent, defective.

3.4 The trial judge also held that, because the sentencing system in England and Wales is so appreciably different from that which

obtains in Ireland, sentences of this kind should more properly be adapted under s.7(5) of the 1995 Act which permits the Minister on

an application for issuance of a warrant under s.7(1) to seek adaptation of the sentence to one prescribed by the law of the State “if

the sentence concerned imposed by the sentencing State concerned is by its legal nature or duration incompatible with the law of

the State”. Hogan J. expressed the view that the British system of automatic release by way of legal entitlement after service of two

thirds (or, in the case of a conviction after April 2005, one half) of the sentence goes to the “legal nature” of the sentence imposed

by the judicial branch of the sentencing State, whereas the Irish system of remission (which is normally one quarter) is fundamentally

a matter going to the question of the administration of the sentence by the executive of the receiving State. Further, in the course

of that first judgment, the trial judge inferred the origin of this principle from the judgment of this Court in Sweeney, in which it was

pointed out that the adaptation of sentences was a possibility, although rightly pointing out that this Court did not have to consider

that matter in that particular case because the prisoner concerned was entitled to release in any event as his sentence had already

expired. Nevertheless, the trial judge expressed the view that the incompatibility between this particular form of English sentence and

Irish law necessitated adaptation of such sentences at the time of the transfer of the prisoner to this State. This particular aspect of

the trial judge’s findings was considered in more detail during the second stage of the hearing.

3.5 The trial judge also held that a court can direct the release of an applicant in Article 40.4.2 proceedings where the warrant is so

defective that no proper basis for the current detention has been made out by the detainer, whereas defects which were “so

peripheral or technical that they may safely be classified as harmless errors, not affecting the underlying validity of the detention

warrant” lay, as it were, at the other end of the spectrum where they may safely be classified as “harmless errors” thus not justifying

release. In this matter, the trial judge found the defects in the warrant to fall into an intermediate category because they were too

serious to be dismissed outright, but, the warrant being “otherwise replete with details specifying the offences in question”, the trial

judge found that the defects were “not (yet) so pervasive as to destroy the validity of [the] warrant”. In those circumstances, the

trial judge followed the example of the approach taken by Baker J. in Miller v. Governor of Midlands Prison [2014] I.E.H.C. 176 and

adjourned the Article 40.4.2 application to allow the Minister to make an application, should she consider it appropriate, to the High

Court under s. 9(1)(b) of the 1995 Act 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.” The trial judge considered that

this was the appropriate course of action 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. However, the trial judge, appropriately, expressed no view

as to whether the Court could or should exercise the power of variation or adaption so as to correct the particular errors in question.

3.6 At the second stage of the hearing, following an application brought by separate motions on notice to the prisoners, the Minister

sought orders under s.9(1)(b)(ii) of the 1995 Act to vary the warrants issued by the High Court on 9th August, 2006. In that context,

the trial judge considered the difference between the power to adapt a sentence under s.7(5) of the 1995 Act, on the one hand, and

the power to vary the terms of a warrant under s.9 of the 1995 Act, on the other. The trial judge noted at the outset, at para. 13,

that “[t]he distinction between the power to adapt and the power to vary might be regarded as a rather subtle and slender one. It

is, however, one which has been carefully drawn by the Oireachtas itself, and the distinction lies at the heart of the 1995 Act.” In

essence, the trial judge found that the power to adapt “implies a power to modify, or even transform the nature of the sentence at

issue…It is true that the power to adapt includes a power to vary, but the power to adapt is more far reaching and transformative

in its proper exercise than a mere power to vary.”

3.7 On examining whether the defects exhibited in the present s.7 warrants could be cured by means of a variation order under s.9 of

the 1995 Act, the trial judge first considered the incorrect date of commencement of the sentence as recorded on the warrant.

Hogan J. considered that this was an appropriate matter for correction under s.9(1) of the 1995 Act because “[s]uch a corrective

order is somewhat akin to the making of an order under the slip rule (o. 28, r. 11) and the nature of the change can properly be

regarded as being appropriate to a variation order.” Further, the Court held that the making of such an order “could be said to be

giving effect to the provisions of the Strasbourg Convention within the meaning of s.9(2) because it enables the duration of the

sentence actually imposed by the sentencing state to be accurately reflected in the s. 7 warrant.”

3.8 However, the Court considered that the situation was different in respect of the recording of the sentence as one of 28 years on

the s.7 warrants. First, the trial judge considered the nature of the sentence imposed on the prisoners. Having observed that “the

sentence actually imposed by Woolwich Crown Court has no direct counterpoint in our law, since-as the Supreme Court made clear

in Sweeney - we have no equivalent legislation which provides for the automatic release of the prisoner following the expiration of a

fixed period of that sentence”, the trial judge found himself “driven to the conclusion that the English sentence…requires to be

adapted by means of an order under s.7(5) of the 1995 Act.” This was in part because the terms “adapt” and “vary” could not be

interchangeable, and that the Oireachtas could not have intended for the terms to be so treated. Secondly, the trial judge noted

that, under s.3 of the Explosive Substance Act 1883 (as substituted by s.4 of the Criminal Law (Jurisdiction) Act 1976 and as further

amended), the maximum sentence which can be imposed for conspiracy to cause an explosion in this jurisdiction is 20 years. A

penalty of life imprisonment is allowed for this offence in England and Wales and, indeed, the prisoners were each sentenced to 28

years in respect of this offence. At this point, the Court observed that s.7(6)(a) of the 1995 Act (as amended) provides that the

adapted sentence cannot exceed the maximum penalty prescribed in our law in respect of the corresponding offence. However, the

Court noted, at para. 22, that s. 9, which contains the power to vary, contains no such stipulation, and that this represented:

“a further clear indication from the actual text of the statute that where (as here) the sentence imposed by the foreign

court is greater than the maximum penalty prescribed by our law in respect of the corresponding offence, an adaptation

order under s.7(5) is required…Why else would s.7(6)(a) contain a prohibition of this nature governing the making of an

adaptation order if the Oireachtas had also thought that a change of this kind could be achieved by the making of a

variation order under s.9(1)?”

Having found that this sentence required adaptation, the trial judge considered whether it was possible to make an order adapting the

English sentence under s.7(5) of the 1995 Act at that point. As already noted, the power to adapt a sentence is contained in s.7(5)

of the 1995 Act (as inserted by s.1 of the Transfer of Sentenced Persons (Amendment) Act 1997).

3.9 The trial judge noted that this section should be read in conjunction with s.7(1) of the 1995 Act, which provides:

“Where the Minister consents to a request for a transfer under s.6 of the Act, he or she shall apply to the High Court for

the issue of a warrant authorising the bringing of the sentenced person 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.”

3.10 In light of the content of these provisions, the trial judge found, at para. 26 of his second judgment:

“It is clear from the language of s.7(2) that an application for the transfer order has to be made before the prisoner is

physically transferred into the State. It follows, inexorably, from the opening language of s.7(5)(a) (“on an application to

the High Court under subsection (1) of this section…”) that the power to adapt can only be exercised at this juncture

and, specifically, that this power of adaptation cannot be exercised at any later stage.”

3.11 On that basis, the Court found that it lacked jurisdiction to make the appropriate adaptation order under s.7(5) of the 1995 Act

(as amended). The corollary of this finding was that the s.7 warrant offered by the State to justify the detention of the prisoners was

“irremediably defective, and, unfortunately…beyond the capacity of [the] Court to correct or cure.” As a result of the finding that

the s.7 warrant was manifestly defective in terms of the nature and duration of the sentence imposed, and in light of the finding that

the sentence was incompatible with Irish law and required adaptation to be effective in this State, the High Court concluded that the

State could not demonstrate that the detention of the prisoners was in accordance with law, “given the existence of a defective

warrant which lies beyond the capacity or jurisdiction of [the] Court to rectify at this juncture.” Therefore, the Court held that the

detention of the prisoners could not be shown to be lawful, and so the Court directed the release of each of them.

4. Issues

4.1 Against that background, a series of issues was raised before this Court which mainly derived from the appeal brought by the

Governor but also, in part, derived from notices to vary served by the prisoners. In substance, those notices to vary suggested that,

in the light of the determination by the trial judge of the invalidity of the relevant warrants for the reasons set out in his first

judgment, the immediate release of the prisoners should have then been directed without affording the Governor or other public

authority such as the Minister an opportunity to suggest to the Court that the problems in the relevant warrants could be remedied.

4.2 In addition to that issue, three questions were raised on this appeal on behalf of the Governor. The first concerned a contention

that, in the circumstances of this case, the prisoners had lost any right to assert the invalidity of the warrants by which they were

held (and thus to contest the validity of their continuing detention) by reason of the fact that they had applied to avail of the

provisions of the 1995 Act in circumstances where it had been made clear to them that they would be expected to serve the full 28

years imprisonment imposed by the Court of Appeal of England and Wales subject only to Irish remission. There was some debate at

the oral hearing as to the precise legal basis on which it was argued by the Governor that the prisoners could not, therefore, avail of

any point which could be raised deriving from Sweeney. It will be necessary to return to this issue when discussing the questions

raised.

4.3 Second, it was argued on behalf of the Governor that the warrant was not defective. The basis of that argument was that, as a

matter of Irish law, it is said that a warrant does not have to specify the intended release date of a prisoner. On that basis it is said

that the warrant issued by Peart J. accurately reflected the sentence of 28 years imposed in the Court of Appeal of England and

Wales and that the release date which might result from the serving of that sentence in Ireland, being a matter of law, did not require

to be specified in the warrant.

4.4 Third, it was argued that, if necessary, the courts had a jurisdiction either to amend the warrant (under what was said to be an

inherent jurisdiction) or to vary the warrant (under the terms of the 1995 Act) so as to bring it into conformity with the proper lawful

implementation in Ireland of an English sentence. Thus, it was suggested that if the warrant was, contrary to the submission made in

respect of the second issue, defective, it could be cured by an amendment or variation of that type so that, it was said, a proper

warrant thus amended would continue to justify the detention of the prisoners. In this last context it should, of course, be recalled

that the form of proceedings brought by each of the prisoners involved an inquiry under Article 40 of the Constitution into the validity

of their detention. The sole ultimate issue before the Court was, therefore, whether their detention was lawful. All other issues were

only relevant insofar as they might touch on the question of the validity of that detention.

4.5 Finally, it is important to note that the Governor did not suggest that it was open to the Court, at this stage, to “adapt” the

English sentences in question under the provisions of s.7(5) of the 1995 Act. While the question of a possible adaptation is discussed

in the judgments of Hogan J. in the High Court (and in particular in the second judgment) the Governor drew attention to the fact

that no application for an adaptation had been made to the High Court and emphasised that this Court was not being invited to make

such an adaptation order. The question of whether an adaptation order could be made after a prisoner had been brought back to

Ireland and imprisoned on foot of a warrant made under the 1995 Act was, in those circumstances, said not to arise.

4.6 It will, however, be necessary to consider the legislative provisions in respect of adaptation for one of the issues which may fall

for consideration on these appeals concerns the question of whether the only means by which a sentence of a relevant type imposed

by the courts of England and Wales can now be served in Ireland is on foot of an adapted sentence in accordance with s.7(5). In

other words, it is asserted on behalf of the prisoners that an unadapted sentence of a relevant type such as that imposed in England

and Wales in these cases is not capable of being the subject of a valid warrant under the 1995 Act. Obviously if that proposition were

to find favour then, no adaptation having been made nor any adaptation being now sought, it would follow that there could not be a

valid Irish warrant. The question of adaptation is also relevant insomuch as the trial judge distinguished sharply between adaptation

under s.7(5) and variation under s.9. It is, however, important to emphasise that the question of adaptation only arises in that

indirect way given the absence of any application on the part of the Governor (or, indeed, any other State officer such as the

Minister) for an adaptation order. We propose to deal with the issues in the order in which we have described them. We will deal with

the questions raised in the prisoners’ notices to vary in the context of discussing whether any defect in the relevant warrants is

capable of being cured as those issues form an integral part of the discussion which properly arises in that context.

5. Can the Prisoners Raise these Issues?

5.1 The case made on behalf of the prisoners can be described, with some justification, as unmeritorious. It is, and was, a

fundamental requirement of the scheme that an applicant for transfer to his home country must be a sentenced person and, indeed,

that such sentence must be final. It is, therefore, a requirement of a successful application that there should be no question about

the obligation of the applicant in question to serve a prison sentence. The only thing the scheme does, in ease of prisoners, is to

permit them to serve that sentence in their home country. Yet the logic of the prisoners’ position in these proceedings is that as and

from the day of transfer they were not lawfully detained in prison and were entitled to be released. Furthermore, the prisoners had

agitated for the transfer, had been notified of their likely release date, and had signed letters accepting that the transfer was on that

basis. All this can certainly be said to raise some issues as to the entitlement of the prisoners to advance arguments that they were

in unlawful custody once transferred. However, in Caffrey v. Governor of Portlaoise Prison [2012] 1 I.R. 637, this Court, at para. 33 of

the judgment of the Chief Justice, endorsed the approach of the High Court judge (Charleton J.) that a prisoner could not by consent

or apparently by acquiescing in the form of his detention render what is not in law a valid form of imprisonment into a lawful

detention. Since this is a recent decision of this Court, made in the context of the same statutory scheme, which was not directly

challenged in this appeal, we consider that it is necessary to address the legal validity of the prisoners’ detention without regard to

their conduct in seeking a transfer. We would reserve for another occasion the question as to whether, and in what circumstances, if

any, a party may become disentitled to advance arguments as to the invalidity of his detention.

6. The Validity of the Warrant

6.1 The starting point for any discussion on this question must be to emphasise the importance of ensuring that any court order

which imposes a significant obligation on any party be clear and unequivocal in its terms. This principle is of particular importance in

the context of any court order or warrant which justifies depriving a person of their liberty. Persons, such as the Governor in this

case, who are entitled to detain individuals as a result of an order made by a court should be given, by the order in question, clarity

as to the precise terms of the deprivation of liberty authorised by the order concerned.

6.2 In that context, it is true, as was argued by counsel for the Governor, that it has never been suggested that an order justifying

the detention of an accused who was convicted of a criminal offence and sentenced to a period of imprisonment must specify the

likely release date of the prisoner concerned. However, the court order ought, itself, to be clear. The person concerned will have

been sentenced to a specified period of imprisonment. Unless otherwise expressly provided in the court order, that period will

commence from the day of the order. Subject to any question of remission or early release, the order or warrant will be clear as to

the date on which the term of imprisonment expires, which will be the day on which the term of the sentence imposed by the court

will run out having regard to the date when the sentence is to commence. A sentence of two years imposed today will expire two

years from today.

6.3 It is, of course, the case that, in Irish law, any such prisoner will ordinarily be entitled to remission (normally of one quarter of the

sentence) unless that remission is lost in accordance with the prison rules (Order 59 of the Prison Rules 2007 (as amended)).

However, that entitlement to remission operates as a matter of Irish law with which it must be presumed the Governor will be familiar,

and in any event is not a matter for the order of the Court. It is, to use the language of the Convention, not a matter as to the legal

nature of the sentence, but rather its administration. The likely release date (on the assumption that ordinary remission applies and

that it is not, either in whole or in part, lost) can be conclusively determined by reference to the court order itself and to the prison

rules. There is no ambiguity. The fact that the court order does not make reference to the possibility of remission and the date on

which release might be expected in the event that ordinary remission applies, is, therefore, neither here nor there. The Governor is

bound, as a matter of Irish law, to apply remission in accordance with the prison rules. Subject to the proper application of such

remission as a prisoner may be entitled to, the Governor is authorised to detain the prisoner for the length of sentence specified in

the warrant issued by the court. The authorised period of detention can be definitively determined by reference only to the court

order and warrant and the proper application of measures of Irish prison law.

6.4 However, the situation of a prisoner who is serving the balance of a foreign sentence in Ireland as a result of a warrant made

under the 1995 Act may well be different. If there is no material difference between the legal nature of the sentence imposed in the

requesting country and the legal nature of a sentence of imprisonment imposed in this country then no difficulty may well arise. Even

then it will be necessary to adjust the terms of the warrant to take account of the time served (and, where appropriate, the

remission earned) in the sentencing jurisdiction. The warrant should direct the Governor to detain the prisoner for a fixed period from

the date of the warrant. To take a simple example, if a prisoner had been sentenced to ten years and had served two years in a

jurisdiction which allowed remission equal to 50% of time actually served, then the warrant should authorise the Governor to detain

the prisoner for a period of seven years from the date of the warrant being the period remaining of the sentence once the time served

and remission earned is deducted . This seven year period would then be served subject to remission under the Irish system. That, it

should be observed, is not an adaptation of the sentence, but rather its continuation but with clear language (which would not be

necessary in a simple committal warrant from an Irish court) directing the Governor as to the length of time that must be served in an

Irish prison, and which will then be subject to administration under Irish rules.

6.5 Certainly, where there is a material difference in the legal regimes, then a failure to specify in an Irish warrant made under the

1995 Act what precise period of imprisonment is authorised by the warrant may create an unacceptable level of uncertainty. In

particular, that uncertainty may well derive from the fact that the extent of the authority conferred by the warrant to retain the

relevant prisoner in custody may not be capable of being ascertained solely by reference to the terms of the warrant itself and the

application of relevant provisions of Irish prison law. Rather, it would be necessary to refer to provisions of the law of the sentencing

jurisdiction.

6.6 Indeed, it is worth observing that the closest parallel in this jurisdiction to the form of sentencing regime now applicable in respect

of many offences in England and Wales is to a suspended sentence. As we understand it, what occurred in England and Wales was

that the suspended sentence ceased to be a form of punishment available to judges, and remission as a matter of prison rules was

also removed, and together these were replaced by the type of sentence described both in Sweeney and in this judgment. Its legal

nature might well be described as being analogous to a form of statutorily imposed suspension of the relevant proportion (one half or

one third) of the sentence without standard remission being afforded in respect of time in prison but subject to statutory terms.

6.7 While it is true that this Court has, in Sweeney, given a definitive interpretation as to how, at least at the level of principle,

recent sentences for significant offences imposed in England and Wales are to translate into sentences in this jurisdiction, that

interpretation by this Court was, in itself, dependent on the state of English statute law at the relevant time. As one of the

distinctions between the facts and law applicable in Sweeney compared with the facts and law applicable in these cases clearly

demonstrates, a change in the statute law of England and Wales has had a significant effect on the length of the term of actual

imprisonment which is to be served, as a matter of law, in that jurisdiction, as a result of the imposition by a court of any particular

length of sentence. At the time when the sentences in this case were imposed, the period of actual imprisonment was two thirds of

the term imposed by the court. At the time when the sentence in Sweeney was imposed, the relevant proportion was one half.

Without being aware of the relevant statute law of England and Wales applicable to any particular sentence, a prison governor would

not, therefore, be able to determine the length of actual imprisonment authorised by a warrant which simply specified the term of

imprisonment imposed by a court of England and Wales.

6.8 Thus, once it was decided in Sweeney that the changes in the law in England and Wales affected the legal nature of the

sentence, a warrant which simply replicated the term of imprisonment imposed in a court in England and Wales, even when coupled

with the knowledge of the proper application of measures of Irish public law (such as the law relating to remission) to such a

sentence, would not, of itself , be sufficient to give clarity to a prison governor as to the amount of time which a prisoner would

actually be required to serve. The prison governor would also need to know what the state of the statute law of England and Wales

was at the relevant time. This demonstrates, in our view, that a warrant which simply specifies a particular period of imprisonment

imposed by a court of England and Wales gives insufficient clarity as to the actual term of incarceration which is authorised for, even

if supplemented by the proper application of provisions of Irish law, the warrant would be insufficient to determine definitively when

continued incarceration is no longer authorised.

6.9 For those reasons, we are not satisfied that the warrant in this case can be said to be correct. Once this Court had decided in

Sweeney that the statutory changes in England and Wales had affected the “legal nature” of a sentence, then the period for which a

prison governor was authorised to detain a person transferred under the 1995 Act (and the period to which the Irish rules on

administering prison sentences must be applied) could only be determined by understanding the relevant law applicable in England and

Wales, having to hand and applying the decision of this Court in Sweeney, knowing the period served in England and applying all of

these matters to the basic sentence terms imposed in England. We are satisfied that a warrant which merely specifies the period of

imprisonment pronounced in sentencing by an English court is, as a result of the decision in Sweeney, undoubtedly defective. Here, it

follows from the decision in Sweeney that although the English court sentenced the prisoners to 30 years imprisonment (later reduced

to 28 years imprisonment on appeal) the “ legal nature and duration” of such a sentence, in accordance with the English and Welsh

statutory regime, has been determined (see judgment of Murray J. at paras. 13, 21, 37 and 43) to amount to a period of

imprisonment, together with a period of licensed release of nine years and four months to which effect could not be given in Irish law

(without adaptation) since Irish law did not provide for that form of licensed release (Murray J. para. 42). Accordingly, any warrant

should have specified a period of imprisonment of 18 years and eight months less time served in England. The warrants in this case did

not do so since they had been made before the decision in Sweeney. It follows, in our view, that they are defective. It is necessary

to next turn to the question of what that defect was and whether it can be cured.

7. Can the Defect be Cured?

7.1 Three interrelated questions potentially arise under this heading. The first concerns the issue raised on the notices to vary, in

which it is argued that it follows from the fact that, as the trial judge found, the warrants were defective, the release of the

prisoners ought immediately to have been ordered. The second concerns the question of whether it is possible in principle, and

appropriate in the circumstances of this case, to remedy the defect either by varying the warrants in accordance with the provisions

of the 1995 Act or by amending them on foot of an inherent jurisdiction of the Court. The third issue, which, as has already been

pointed out, only arises in an indirect way, is as to whether the only possible way in which a relevant sentence of imprisonment now

imposed in England and Wales can be served in Ireland under the provisions of the 1995 Act is as a result of an adaptation of the

sentence imposed in England and Wales.

7.2 At an earlier stage in this judgment, we noted that one of the suggestions made on behalf of the prisoners was that the order

made in Sweeney was to quash the warrant, and that it followed that a similar order should have been made in these cases. It is true

that Clarke J. used the term “quash” in the course of his judgment in Sweeney. It may well be that that was a loose use of language.

It must be recalled that, on the assumption that the argument put forward concerning the proper implementation in Ireland of an

unadapted sentence imposed in England and Wales which was advanced by Mr. Sweeney was correct, it followed that, by the time

his case came before this Court, Mr. Sweeney was entitled to release. This was a central feature of the case, and indeed the reason

why the case was dealt with expeditiously both in the High Court and in this Court. In reality, the question of whether the warrant

was always bad, or simply did not justify his continued detention beyond a certain date, did not arise in Sweeney and was not,

therefore, the subject of argument.

7.3 In those circumstances, we do not think that Sweeney can be taken as authority for the proposition that a warrant which is

defective, in the sense in which the warrant in Sweeney was, and in the sense in which, for the reasons which we have just

addressed, in our view the warrants in this case are, is invalid from the beginning and does not justify any detention of a transferred

prisoner. Indeed, insomuch as it was addressed in Sweeney, the Court appears to have assumed that Mr. Sweeney was lawfully

detained until the expiration of the period for which he could properly have been detained in England once the legal nature and effect

of the English sentence had been determined. Thus, the order proposed by Murray J. at para. 47 of the judgment was a “declaration

that [Mr. Sweeney] was not entitled to be detained on foot of the High Court order in question as and from the expiry of the first

half of his sentence, namely, the 8 year period” (emphasis added). In the judgment of Clarke J., it was stated at para. 4.15 that

“[g]iven that the relevant 8 year period had elapsed by the time of the hearing in this Court, it seemed to me that Mr. Sweeney was

entitled to be released” and at para. 5.2 it was stated “[i]n those circumstances, and having regard to the fact that, by the time

the appeal before this Court came to be heard, Mr. Sweeney had already served a period of 8 years in prison, it also seemed to me

to follow that his immediate release should be directed”. It is necessary to consider now what the precise effect of the decision in

Sweeney is and its impact on the resolution of these cases.

7.4 It is logical to approach this question by first considering if the warrant may be varied, and thereafter considering if the trial judge

was right to adjourn the inquiry to permit an application for variation. To some extent, that latter issue may depend upon our analysis

of the extent of the power of variation, its source, and whether indeed it extends to the defects identified in the warrants here.

8. Variation under section 9

8.1 Section 9 of the 1995 Act permits the Minister to apply to court to revoke or vary a warrant issued under s.7. The court may

grant such variation “in order that effect may be given to the provisions of the Convention”. This indeed is one of the few references

to the Convention in the 1995 Act.

8.2 As the trial judge correctly observed, there is a superficial similarity between the power of adaptation contained at s.7(5) of the

Act and this power of variation. However there are a number of noteworthy distinctions. First, the power is to vary the domestic

warrant, whereas the power to adapt applies to the underlying foreign sentence. Second, the power of adaptation is limited in time by

the 1995 Act (although not by the Convention) to the time of the initial application under s.7(1) and therefore must, as a matter of

Irish law, occur before a transfer is effected. Third, the power to adapt is plainly an implementation of Article 10.2 of the Convention

which provides in terms almost identical to s.7(5) that:

“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.”

8.3 By contrast, the power to vary under s.9 is not itself limited in time, and is not made conditional on incompatibility with the law of

the administering State. It is not derived from a specific provision of the Convention. Instead, it appears to be a sensible, domestic

provision intended to permit the Minister and court to address and resolve issues relating to the warrant. Perhaps the most obvious

circumstances where a variation may be necessary or required is where there is a failure to give complete or accurate effect to the

terms of the foreign sentence, perhaps because of a misunderstanding of its terms. It appears to be a broad power designed to

remedy the sort of technical problems that can crop up when it is sought to give effect to a sentence imposed in one of the other

contracting states and where there is always scope for misunderstanding and, indeed, change.

8.4 On its face, therefore, the power to vary a warrant is a wide one and is potentially capable of being applied here. The trial judge

accepted that this might be an initial view of the provision (and indeed adjourned the hearing for the purposes of considering an

application to vary) but after hearing argument took the view that the power of variation under s.9 must be more narrowly construed.

He came to this conclusion because he considered that a distinction, albeit a fine one, had been made by the Oireachtas between

adaptation and variation. It followed that variation should be given a more narrow interpretation so that it could not apply in

circumstances appropriate for adaptation, that is where a sentence to be continued was incompatible in its legal nature or duration

with the law of the State. In this case, the application of Sweeney was to the effect that the sentences here required a specific form

of supervision in the community which did not exist in Irish law. That, he considered, was a situation which required adaptation (which

was no longer available here because the order under s.7(1) had been made). Furthermore, he considered that it was significant that

the power of adaptation under s.7(5) was qualified by the provisions of subsection 6 of s.7 which provides that the adapted sentence

shall not aggravate the legal nature or duration of the sentence or exceed the maximum penalty in the administering State. No such

provision was included in s.9. Therefore, he deduced that the power of variation under s.9 was different from, and narrower in scope

than, the power of adaptation under s.7(4), and could not be applied here.

8.5 In effect, the trial judge concluded not only that adaptation and variation were different, but that they each applied to the

exclusion of the other. If a situation was appropriate for adaptation of the sentence, it could not be appropriate for variation of a

warrant even in part. Even though as a matter of language they were closely related and overlapping concepts, they had to be

treated in law as mutually exclusive, which meant giving to the concept of variation under the 1995 Act a narrower interpretation

than would follow from the ordinary meaning of the words. Put another way, the reason why the warrant here could not be varied

was because of the existence of a power of adaptation, which was, however, unavailable.

8.6 One of the difficulties created for courts by the Article 40 procedure, particularly in cases which are especially complex, is that

decisions must be made under significant pressure of time. Here, the trial judge produced a thoughtful and careful analysis of the

power of variation within a very short time. While acknowledging the care the trial judge brought to his task, we must however

respectfully disagree with this analysis. In our view, there is no reason to give a restricted and narrow reading to the power of

variation. On its face it is a sensible provision designed to avoid technical difficulties with the terms of the warrant. While the result of

adaptation and variation may be similar in some cases, there is a significant difference between them. Adaptation is of the (foreign)

sentence: variation is of the (domestic) warrant. Adaptation is permissible only where the sentence is by its legal nature incompatible

with the law of the State, and is applied to adapt the sentence “to a sentence prescribed by the law of the State for an offence

similar to the offence for which the sentence was imposed”. Variation of a warrant is more general, and is available whenever it is

necessary for the purposes of giving effect to the provisions of the Convention. Perhaps most obviously in the present context,

adaptation would result in the whole of the sentence being applied in Irish law, whereas variation can only have effect on the

custodial portion of the U.K. sentence which is compatible with Irish law. Furthermore, the difference in derivation of the power of

adaptation and variation is itself a reason to doubt an approach to interpretation which assumes that they come from the same

source, and therefore must be interpreted as mutually exclusive. Once the 1995 Act is analysed in the light of the Convention it

becomes apparent that s.9 was a prudent provision introduced in Irish law to permit, so far as possible, the adjustment of the warrant

at any time to ensure its effectiveness and validity, and that it conformed to the sentence imposed, (or that part of it which was

enforceable) and thus could give effect to the provisions of the Convention.

8.7 By the same token, we do not consider that it can be dispositive that the power of adaptation was qualified by the provisions of

ss.6 but the same language is not included in s.9. The different origins of the provisions may explain the different language. The

provisions of s.7(6) are derived directly from the Convention. Since variation is expressly limited to giving effect to the Convention,

any variation is limited to bringing the warrant into conformity with the terms of the underlying sentence. Since that sentence is not

being adapted or in any other way affected, it cannot be exceeded by variation of the warrant. It is not apparent that it would be

necessary in any event to include such a provision in s.9. The fact that variation and adaptation are different and operate at

different points in the process and on different subject matter, and by different criteria, is in itself not a reason to give a more

restricted meaning to the term variation than would naturally be given to it. Accordingly, there is no reason to give such an artificially

narrow reading to the power of variation. Indeed, the fact that the power is expressly provided for the purposes of giving effect to

the Convention suggests a broad and ameliorative power.

8.8 There seems to be little dispute that the power of variation can be used at any point to bring the warrant into conformity with

the sentence. Thus, if there had been an error as to the precise terms of the sentence here, and it was clarified that it was 18 years

and 8 months rather than 28 years as understood initially, it would be appropriate to vary the warrant. If there had been an appeal in

the U.K. and the sentence was reduced to 18 years and 8 months, variation would be permissible. If separate proceedings in the U.K.

had determined that the true nature of a 28 year sentence was a sentence of 18 years and eight months then variation would be

required and permissible. If such proceedings had determined that the true nature of the sentence was 18 years and eight months in

prison and nine years and four months on licence, then, if an Irish Court found that release on licence was incompatible with Irish law

and effect could not be given to that portion of the sentence, once again the warrant would have to varied so that it reflected the

portion of the sentence enforceable in Irish law. In effect, that is what has happened here, save that the nature of the sentence has

been determined by this Court in Sweeney and there is no reason not to vary the warrant to reflect that portion of the sentence that

can be given effect to in Irish law. Indeed, this exercise demonstrates that it is wrong to interpret variation in this context as

identical to adaptation, and therefore superfluous. Quite different results would emerge if it had been attempted to adapt these

sentences in circumstances where the decision in Sweeney had been available at the time of transfer. It seems likely that the closest

Irish equivalent to the sentence here would have been a sentence with a portion suspended on terms, and with the custodial

sentence “grossed up” to take account of remission in Ireland. Thus, and leaving aside any question of the maximum term, the

adapted sentence might be 28 years with a little over 3 years suspended on terms that on release (which with remission would be

after 18 years and eight months approximately), the prisoner would be of good behaviour and would comply with such other

conditions as the court might impose consistent with the provisions of U.K. law. This would be quite a different outcome to what is

proposed here on a variation under s.9.

8.9 Here, the effect of the English sentence as analysed in the light of the judgment in Sweeney is the following. On its face it is a

sentence of imprisonment for a term of 28 years, which, (leaving aside any question of incompatibility by reason of its length

exceeding any statutory provision in Ireland), is, as imprisonment for a term of years, not itself incompatible with the law of Ireland.

The original warrant granted by Peart J. sought only to enforce that term of imprisonment. However, the effect of Sweeney is that,

for the purposes of determining whether it is compatible with Irish law, the legal nature of the sentence is to authorise imprisonment

for a period of 18 years and eight months and supervision on licence in the community for a period of nine years and four months. The

latter provision is, as Sweeney decided, not compatible with Irish law, and in the absence of adaptation under to s.7(5), it cannot be

enforced. However, there is no similar incompatibility in principle with the concept of imprisonment for a term of 18 years and eight

months. The only difficulty with that aspect of the sentence is that the warrant (wrongly in the light of Sweeney) provides for an

imprisonment for the wrong period of 28 years. The defect in the warrant can be varied to bring the warrant into conformity with the

sentence (as conclusively determined by Sweeney). Thus variation and adaptation have very different consequences. They cannot be

regarded as identical and therefore potentially superfluous, leading to a narrower interpretation being required to be given to the

concept of variation. The fact that even if the warrant is varied the prisoners will receive a benefit (in terms both of the nominal

period of imprisonment and the remission applied to it) is a reason to conclude that variation and adaptation are distinct if overlapping

concepts in law as they are in language. It is certainly not a reason to limit the natural field of application of variation. Furthermore,

given the different derivation of the powers, we doubt that it is appropriate to adopt an approach to interpretation which assumes

that the Oireachtas was the sole drafter of the text, and must be assumed to have intended the concepts to be mutually exclusive

8.10 The power of variation cannot be used to impose a term of licensed supervision, since that is not compatible with Irish law and

could not be administered under it. Nor could variation impose some broadly analogous provision that could be administered under Irish

law, since in such a case the warrant would not conform to the sentence. But this limitation on the power of variation does not mean

that a sentence of 28 years cannot be varied to one of 18 years and eight months to bring that aspect of the warrant in to

conformity with what has been determined to be the custodial portion of the English sentence enforceable after Sweeney. Such a

variation is furthermore fully consistent with s.9 since it gives effect to the Convention by permitting the transferred prisoner to serve

the custodial part of their sentence in Ireland rather than resulting in them being released in Ireland long before they would have been

released under Irish or English law, something which is not just wholly inconsistent with the Convention but would be destructive of it.

Indeed, it might be thought that this was precisely the sort of case where variation of a warrant would be useful, since, as this case

demonstrates, while the principle embodied behind the Convention is a simple and humanitarian one, the technical business of giving

legal effect to foreign sentences can give rise to many complexities and unanticipated problems. Where we differ, therefore, from the

trial judge is on this relatively narrow point: we cannot agree that the existence of a power of adaptation should have the

consequence of giving an unduly narrow meaning to the concept of variation.

8.11 There is one final aspect of the argument put forward on behalf of the prisoners on which we should comment. It was said that

it was not possible to vary the sentence in this case in the manner urged on behalf of the Minister because, by so doing, one would

be ignoring part of the sentence imposed in the sentencing jurisdiction. It was said that the only sentences capable of being

enforced, and therefore varied, were those that could be “continued” in this jurisdiction . Section 7(4) provides that the effect of a

warrant is to authorise the continued enforcement by the State of the relevant sentence imposed by the sentencing state concerned

in its legal nature and duration. If incompatible it may be adapted. It is argued therefore that the incompatibility now identified, in the

light of Sweeney, means that “the sentence concerned” cannot be enforced, either by the original warrant or any varied warrant .

8.12 Put another way the argument is about whether the non-custodial portion of the United Kingdom sentence can be taken to

simply fall away because it has no counterpart in this jurisdiction. If that is so then the variation proposed would simply be to give

effect to the custodial part of the sentence ignoring that portion which has fallen away. In that scenario the variation proposed

would simply be one designed to give effect to the existing enforceable sentence by varying the warrant.

8.13 On the other hand if it cannot be said that the non-custodial of the UK sentence falls away then it is argued that there is no

manner in which the Irish warrant can be varied so as to give effect to the United Kingdom sentence including that specific form of

non-custodial sentence which now applies in that jurisdiction. To some extent the resolution of this issue depends on the effect of

incompatibility of a portion of a sentence when a transfer is made without adaptation. Does a sentence which contains an

incompatible element fall entirely on transfer or does only that portion which is incompatible fall so that a warrant can be issued or

varied to give effect to the compatible, and in this case, custodial portion.

8.14 We have come to the view that the answer to this problem lies in the express wording of s.9 which permits variation so as to

give effect to the Convention. While the Convention is not solely concerned with imprisonment as such, it is clear that the overriding

focus of the Convention concerns custodial sentences. For the reasons set out in Sweeney the Convention and, therefore, its Irish

implementing measures, can have no effect in the case of someone who is not liable to a current term of imprisonment no matter

what other provisions a relevant sentence may contain. In those circumstances we are satisfied that, for the purposes of the

Convention, it is possible to vary a warrant while retaining the entirety of the custodial aspect of a foreign sentence while, at the

same time, allowing any non-custodial aspect which is incapable of enforcement in Irish law to fall away. As pointed out earlier, if it is

desired to suggest that some additional punishment should be imposed in Ireland to reflect, in some proportionate and equivalent way,

the non-custodial aspect of the foreign sentence, then adaption will be necessary. However, in this case it is not sought to impose

anything beyond the custodial aspect of the sentence imposed in the United Kingdom. We are satisfied that it is possible to achieve

this by varying the warrant in accordance with s.9 even though that may have the effect that the non-custodial aspect of the

sentence imposed in the United Kingdom may fall away and cannot be enforced by any variation of the warrant . This, if correct,

illustrates the fact that variation of the warrant is different in nature and scope to adaptation of the sentence.

8.15 We now turn to the question of whether the trial judge was correct to permit the Minister the opportunity to bring an application

to vary. It is argued strongly on behalf of the prisoners that, once the trial judge had determined that the warrant was defective in

any way, he ought to have ordered the immediate release of the prisoners who, it followed, would have been entitled to seek to

evade capture and enforcement of any varied warrant even if made. This, it was said, flowed from the fact that the proceedings were

an inquiry under Article 40 and that that great constitutional remedy required immediate enforcement.

8.15 It might be said this is an academic controversy for the purposes of this appeal since the effect of the trial judge’s refusal of the

application for variation was the release of the prisoners. In our view a warrant may be varied and sought to be executed. Even if this

Court were to determine that the trial judge should have ordered the release of the prisoners (and subsequently permitted variation of

the warrant) it would make no difference now in practical terms, since the outcome would be same: the prisoners would be at liberty

and the warrant would be varied. However, the lawfulness of the prisoners’ detention between the determination of the High Court

that the warrant was defective and the date of the judgment of the High Court on the question of variation may be important both

for the prisoners and for others and, in any event, this is an issue which is likely to arise generally but would otherwise evade review

by this Court or the Court of Appeal. We consider it therefore necessary to address the issue.

9. Whether an Order for Immediate Release Required under Article 40

9.1 In our view, for a number of interlocking reasons, the High Court was justified in not making an order for immediate release on its

determination that the warrants here were defective, pending an application for variation. First, and importantly, it must be

recognised that the regime under which the prisoners were to serve their sentence in Ireland is unique. But even in the broader

context of Article 40 proceedings there is an established jurisdiction to correct defects. Thus, in The Law of Habeas Corpus in

Ireland, (Four Courts Press, Dublin 2006) at p.72, Dr. Kevin Costello states:

“A well established remedial technique on habeas corpus is to permit the retroactive validation of the defectively

performed procedural step at the habeas corpus hearing itself. The earliest application of this principle is the ancient

common law rule under which a defective warrant may, in the course of habeas corpus proceedings, be replaced by a

corrected warrant.”

9.2 The same author refers to a decision in The State (Dowling) v. Brennan and Kingston [1937] I.R. 483, where Gavan Duffy J. was

reluctant to permit the submission of supplementary proof because it was an application for habeas corpus and the ‘solemn and

stringent language of Article 6 of the Free State Constitution precluded any such amendment . . However, the author comments,

perceptively, at p.74:

“However, Gavan Duffy J’s understanding that the ‘solemn and stringent language’ of Article 6 forbade amendment is not

necessarily transferrable to its successor, Article 40.4.2. Article 6 required that the detainer ‘certify in writing as to the

cause of the detention, and such Court or judge shall thereupon order the release of such person unless satisfied that he

is being detained in accordance with the law’. The requirement in the text of Article 6 that the High Court determine

‘thereupon’ the legality of the imprisonment could plausibly be read as implicitly excluding any amendment of this original

justification. Article 40.4.2, on the other hand, is not so urgently expressed. Adjudication is postponed until, firstly, the

return has been made, and secondly, the detainer has been afforded the opportunity of justifying the detention. Since

the opportunity to justify the detention (and not just the original return) may, in some cases be most effectively

exercised by revising the original process, Article 40.4.2 may accommodate technical amendments in a way which

Article 6 did not.” (Emphasis added)

9.3 It is not necessary here to determine whether, absent the provisions of s.9 of the Act, the jurisdiction identified by Dr. Costello

could be applied in this situation. However, the existence of such a jurisdiction supports the course taken in this case.

9.4 It is also an important feature of this case that the regime operated in this case cannot be approached as if it were a statutory

provision depriving a citizen of liberty. Instead, it is a humanitarian provision designed, in the words of the Convention, to facilitate

prisoners rehabilitation by allowing them to serve in their homeland (or country with which they have a close connection) a sentence

imposed in another State. A fundamental starting point, indeed a qualification for application of the scheme, is therefore that the

applicant has no present right to liberty. On the contrary, the person concerned must be one who it has been finally determined

should be imprisoned, with the only issue being as to where that imprisonment should take place. The Convention and its implementing

measure in this jurisdiction being the 1995 Act permit such detention, in ease of the prisoner, to take place in a location more

convenient to them. These cases are, therefore, more akin to those cases where a prisoner challenges a warrant transferring him or

her from one prison to another. The underlying obligation on the State to detain such a person is not at issue, only the validity of the

warrant which determines the location at which such detention should take place. In the State (Dillon) v. Kelly [1970] I.R. 174, this

Court (Ó’Dálaigh C.J., Walsh and Budd JJ.) this Court unanimously upheld the decision of Henchy J. in the High Court holding that a

transfer order was invalid since it recorded that it was based on a warrant of the Central Criminal Court which had in fact been

superseded by a warrant of the Court of Criminal Appeal and that, therefore, the detention of the prisoner in Portlaoise Prison was not

a detention in accordance with law. However, this Court did not accept that the consequence of this ruling was that the prisoner was

entitled to be released. Ó’Dálaigh C.J. stated at pp. 178 to 179:

“It has been repeatedly stated in this Court that, where a prisoner is lawfully undergoing a sentence of imprisonment but

his detention has been temporarily rendered illegal by his being detained in a prison not authorised by law, it is the duty

of the court which orders his release from such unlawful detention to ensure that the prisoner is immediately re-

arrested and lodged in a lawful place of detention to serve out the unexpired period of his sentence.” (Emphasis added)

9.5 The force of this Court’s observations in that regard was emphasised by the fact that this Court issued its own warrant for the

apprehension of the prisoner and for his conveyance to and lodgement into Mountjoy Prison to be detained in accordance with the

terms of the valid warrant of the Court of Criminal Appeal. Again, in the State (Brien) v. Kelly [1970] I.R. 69, a young offender

sentenced to detention in St. Patrick’s Institution had been transferred to Portlaoise Prison pursuant to a ministerial order under the

Prevention of Crime Act 1908 certifying that he was exercising “bad influence” on other detainees. However, the minister’s order

recited erroneously that the visiting committee which had reported this fact had also concluded that the offender was “incorrigible”.

Accordingly, the Supreme Court quashed the order for transfer and allowed the application for habeas corpus in relation to his

imprisonment in Portlaoise, but without prejudice to the enforcement of the original Circuit Court order lodging him in St. Patrick’s

Institution. At pp. 79 to 80 of the reports, Ó’Dálaigh C.J. stated:

“The result of this will be to require that the prosecutor will be released from his custody in Portlaoise Prison but, as the

Court has pointed out, this is not to say that the prosecutor should be at liberty. There is a valid court order sentencing

him to three years detention in St Patrick’s and he must serve out the balance of that sentence … The order of the

Court should be that the Governor of Portlaoise Prison should produce the body of the prosecutor before this Court at 11

o’clock to-morrow morning, when the Court will order that he be taken hence to St Patrick’s Institution to complete the

sentence of three years detention imposed upon him by the Circuit Court.”

9.6 These cases illustrate, in part, that the High Court exercising its jurisdiction under Article 40.4.2 approaches the position of

persons lawfully sentenced to imprisonment, but particularly when such order is made by the High Court itself or a superior court,

differently from the case of an ordinary citizen complaining about detention. In the old language of the law, a person lawfully

convicted and sentenced was a person in execution. Thus, In re Featherstone [1953] 37 Cr. App. R. 146, it was stated by the Court

of Criminal Appeal of England and Wales (Goddard L.C.J., Parker and Donovan JJ.):

“The Court does not grant, and cannot grant, writs of habeas corpus to persons who are in execution, that is to say,

persons who are serving sentences passed by courts of competent jurisdiction. Probably the only case in which the

Court would grant habeas corpus would be if it were satisfied that the prisoner was being held after the terms of the

sentence passed on him had expired.”

9.7 The Court of Appeal of Northern Ireland took the same approach in perhaps less dogmatic terms In re Beggs [1944] N.I. 121.

There, after an erudite argument, Andrews L.C.J. held that the Court of King’s Bench will not in general grant a writ of habeas corpus

to bring up a prisoner under a sentence, alleged to be illegal, imposed by a superior court. The proper method of review in such

sentences was by way of an appeal to the Court of Criminal Appeal. In coming to this conclusion, reliance was placed on the decision

in Ex parte Lees (1860) EL, BL & EL 828; 120 E.R. 718, where Lord Campbell C.J. had held that the writ of habeas corpus was not

grantable “in general where the party is in execution on a criminal charge, after judgment, on an indictment in accordance to the

course of the common law”. Significantly, Andrews L.C.J. also cited with approval the decision of this Court in the State (Felix

Cannon) v. John Kavanagh [1937] I.R. 428. There, Maguire P. had said that a person detained for execution of sentence after

conviction on indictment in the Circuit Court was “prima facie detained according to law and it would require most exceptional

circumstances for this Court to grant even a conditional order of habeas corpus to a prisoner so convicted”. These cases are

normally cited for the proposition that habeas corpus, and an inquiry under Article 40.4.2, will not be permissible where there is an

option of appeal to the Court of Criminal Appeal, a view endorsed by Geoghegan J. in Brennan & ors v. Governor of Portlaoise Prison

[2008] 3 I.R. 364, but the principle must be broader than that, and is consistent with the principle that where a defect is curable,

release will not necessarily be ordered.

9.8 The position was put, elegantly, in the judgment of Henchy J. in the State (Royal) v Kelly [1974] I.R. 259:

“The mandatory provision in Article 40, s. 4, sub-s. 2, of the Constitution that the High Court must release a person

complaining of unlawful detention unless satisfied that he is being detained ‘in accordance with the law’ is but a version

of the rule of habeas corpus which is to be found in many Constitutions. The expression ‘in accordance with the law’ in

this context has an ancestry in the common law going back through the Petition of Right to Magna Carta. The purpose of

the test is to ensure that the detainee must be released if – but only if – the detention is wanting in the fundamental

legal attributes which under the Constitution should attach to the detention.

The expression is a compendious one and is designed to cover these basic legal principles and procedures which are so

essential for the preservation of personal liberty under our Constitution that departure from them renders a detention

unjustifiable in the eyes of the law. To enumerate them in advance would not be feasible and, in any case, an attempt

to do so would only tend to diminish the constitutional guarantee. The effect of that guarantee is that unless the High

Court (or, on appeal, the Supreme Court) is satisfied that the detention in question is in accordance with the law, the

detained person is entitled to an unqualified release from that detention. It is the circumstances of a particular case

that will usually determine whether or not a detention is in accordance with the law.

Where, as in the present case, the prisoner has been convicted and sentenced by a court established by law under the

Constitution, and the jurisdiction of that court to try the offence and impose the sentence has not been challenged, it

would be necessary to show that the procedure has been so flawed by basic defect as to make the conviction a nullity

before it could be held that the detention was not in accordance with the law.”

9.9 These principles also found expression in the well known case of the State (McDonagh) v. Frawley [1978] I.R. 131. In that case,

O’Higgins C.J. endorsed the State (Cannon) v. Kavanagh, re Beggs and re Featherstone, and said:

“The stipulation in Article 40, s. 4, sub-s. 1, of the Constitution that the citizen may not be deprived of his liberty save

‘in accordance with the law’ does not mean that a convicted person must be released on habeas corpus merely because

some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental

requirements that the detention may be said to be wanting in due process of law. For habeas corpus purposes,

therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety, or even that

jurisdiction has been inadvertently exceeded.”

9.10 Again, this statement was made in the context of prisoners challenging their detention post conviction and trial. The statements

are, however, consistent. Here, the prisoners must be taken to have been lawfully convicted after trial and appeal. Not only are the

conviction, appeal and sentence beyond challenge in these courts, they are an essential building block of the prisoners’ entitlement to

seek transfer to serve the English sentence in an Irish prison. Where the regime permitting such transfer also contains a mechanism

for variation of the warrant detaining the prisoners in an Irish prison (rather than an English jail) if it contains a defect, it cannot be

said that the judge was wrong to permit the relevant State authorities to seek variation of the warrant so as to cure such a defect.

Put in another way, there may have been a defect or illegality attaching to the detention, but it was not such a default of a

fundamental requirement that the detention could be said to be wanting in due process of law so that the Court had to proceed

immediately to release the prisoners without considering the question of whether the defect or illegality attaching to the detention

could be cured under the statutory regime providing for their detention. Finally, it could be said that this is consistent with the result

and approach of this Court in Sweeney even if the matter was not the subject of detailed consideration. The Court (and the relevant

applicant) appear to have considered that the detention of the applicant was not fundamentally flawed until such time as Mr.

Sweeney was detained in an Irish prison at a point by which he would have been released in England. In the particular circumstances

of these cases, therefore, we agree that the High Court was entitled to take the step of not proceeding to make a final order under

Article 40.4 until it had the opportunity to consider an application for variation under s.9, which application, in the light of this

judgment, ought to have succeeded.

9.11 Accordingly, we would order that the warrant here be varied to provide for imprisonment for a period of days calculated by 18

years and 8 months less the period served in England and that period served in Ireland plus remission earned in this jurisdiction. This

would result in a significant reduction in time served and avoidance of release on strict terms, which would have been the case if the

prisoners had served their sentence in the UK

9.12 Finally, while the provisions of the 1995 Act (as amended) may be superseded in relation to countries who are members of the

European Union and subject to the provisions of the Framework Decision of 2008/909/JHA (and it is not apparent that this has been

separately implemented in Irish law), the 1995 Act will remain of importance in relation to transfers to or from to countries which are

not subject to the Framework Decision, or those countries who rely on the Convention and any implementing legislation as compliance

with the Framework Decision, and to transfers between European Union countries which predate the coming in to force of the

Framework Decision. The Convention does not appear to have given rise to legal difficulties in most of the other Convention States.

The purpose of the 1995 Act (and the Convention) is essentially humanitarian and seeks to pursue the rehabilitative object of

permitting prisoners to serve their sentence in an environment which is both more familiar, and permits more ready interaction with

their family and friends. Hitherto, it may not have been thought to be in the interests of such prisoners to challenge the regime which

allows for such transfers. However, one of the likely consequences of these proceedings will be to slow up, if not, indeed, to halt

such transfers to Ireland if sentencing States cannot be confident that the sentences will be enforced. It is clear therefore that the

terms of the 1995 Act may require revision. In that regard, it may be appropriate to point out that, while s.7(1) clearly contemplates

that any adaptation must take place on the initial application for transfer, that limitation does not seem to be required by the

Convention. Furthermore, the decision in Sweeney necessarily involved the Irish Courts in the uncomfortable exercise of analysing and

seeking to determine the essential legal nature of a sentence imposed in another jurisdiction. Under the Convention, it is

contemplated by Article 10(1) that, in the case of continued enforcement, “the administering State shall be bound by the legal nature

and duration of the sentence as determined by the sentencing State”. The Convention also provides for the exchange of information

from the administering State to the sentencing State which would include a statement of legal nature and duration of the sentence.

9.13 In principle therefore, any statutory regime for enforcing the Convention should make a similar provision so that disputes as to

the correct legal nature and effect of a sentence should have to be brought and determined in the courts of the sentencing State.

Here, the fundamental problem arose because of the dichotomy between the sentence as announced in the court and the provisions

of U.K. statute law as to the meaning of such a sentence together with the manner in which such a sentence should be recorded for

the purposes of a transfer. Such matters should clearly be resolved in the courts of the sentencing state, and perhaps in

circumstances where all parties know and are bound by the determination.

9.14 Finally, there are some comments in Sweeney which might suggest that a sentence for the purpose of the Act only means a

sentence of imprisonment. While this did not arise for decision in Sweeney, it is perhaps important to point out that sentences which

involve terms of imprisonment and a term of supervised release are not excluded from the Convention or the 1995 Act. What is

required is that the sentence contains a current custodial element and, in the words of the Convention, be a punishment or measure

“involving deprivation of liberty”. If the sentence has some component of direct deprivation of liberty, then it appears to come within

the Convention even though there may also be an element of suspension on terms. Such a “sentence” may be continued in Ireland

under the terms of the Act if it is compatible with Irish law and with the Irish sentencing and probation regime and, if not, it may be

adapted into terms which are. We address these matters as it is desirable that the Convention, and any replacement provision, should

operate in Irish law to provide for a clear and smooth transfer of prisoners to and from Ireland. It is in the long term interests of all

Irish prisoners abroad and their families, as well as in the public interest, that the regime under the 1995 Act should have clear and

effective application on the ground rather than give rise to complex and protracted litigation in courts.