High Court dismisses claim that continued detention after UK transfer date violates Transfer of Sentenced Persons Acts.

Neutral Citation: [2014] IEHC 150

THE HIGH COURT

JUDICIAL REVIEW

[2012 No. 270JR]

BETWEEN

VINCENT SWEENEY

Applicant

AND

THE GOVERNOR OF LOUGHLAN HOUSE OPEN CENTRE, THE MINISTER FOR JUSTICE AND LAW REFORM, IRELAND AND THE

ATTORNEY GENERAL

Respondent

JUDGMENT of Mr. Justice Keane delivered on the 7th day of February 2014

Introduction

1. The net question presented in these proceedings is whether the continued imprisonment of the applicant in this jurisdiction after

the 29th March 2014 is ultra vires the Transfer of Sentenced Persons Acts, 1995 and 1997 (“the Acts”), or contrary to the principles

contained in the 1983 Council of Europe Convention on the Transfer of Sentenced Persons (“the Transfer Convention”), to which

instrument the Acts are intended to give domestic effect, or in breach of the requirements of Articles 34.1, 38.1 or 40.4.1 of the

Constitution of Ireland.

Background

2. The applicant is detained in Loughan House Open Centre, Blacklion, County Cavan, on foot of a High Court committal warrant

issued on the 22nd October 2008, pursuant to section 7 of the Acts. That warrant recites on its face that the applicant is to serve a

sentence imposed in the United Kingdom of “16 years imprisonment with 252 days on remand taken into consideration”, which

sentence commenced on the 7th December 2006.

3. The committal warrant further recites that the crimes for which the applicant was sentenced would, if committed within the State,

constitute offences within the State, to wit: two counts of unlawful importation of a controlled drug contrary to the Misuse of Drugs

Regulations, 1988 made under section 5 of the Misuse of Drugs Act 1977 and contrary to section 15A, section 21(2) and section

27(10) of the Misuse of Drugs Act 1977, as amended.

4. The circumstances of the applicant’s prosecution, conviction and sentence in the United Kingdom are not in dispute for the purpose

of the present proceedings. He was arrested at the Eastern Docks in Dover, Kent, south-east England on the 28th March 2006 in

connection with the attempted importation into the U.K. of 25kg of heroin and 600kgs of cannabis with an aggregate street value of

£2.5 million, which drugs were found at that location concealed in a false compartment within a horsebox. When interviewed, the

applicant afforded no co-operation or assistance and made no admissions. He was charged with two counts of the fraudulent evasion

of the prohibition on the importation of a controlled drug, contrary to section 170(2) of the UK Customs and Excise Management Act

1979. Having entered a plea of not guilty when arraigned on the 3rd July 2006, the applicant was tried at Canterbury Crown Court

between the 27th November and 7th December 2006, and was convicted. Having no known previous convictions, on the 7th

December 2006 the applicant was sentenced to 16 years imprisonment with the 252 days that he had already spent in custody on

remand to be taken into account in calculating that term.

5. The applicant avers that, in passing sentence, Her Honour Judge Adele Williams informed him that he would serve 8 years of the

16-year sentence in custody and 8 years on licence. From that statement, the applicant understood that his release date was in

March 2014. The applicant avers that he further understood, and was advised, that the sentence passed by the judge contained two

distinct elements: a period of time spent in custody followed by a period of time spent in the community under the supervision of the

probation services. While subsequently a prisoner in Her Majesty’s Prison Lowdham Grange, the applicant received a “Release Dates

Notification Slip” recording, among other matters, that the his “sentence expiry date” was the 29th March 2022 and that his

“conditional release date” was the 29th March 2014.

The transfer request

6. The applicant avers that his partner, son and two grandchildren live in County Sligo and that his elderly mother and four siblings

live in County Fermanagh. While it appears that the applicant made enquiries concerning a possible transfer to serve his sentence in

Northern Ireland, it is certainly the position that, at the beginning of 2007, the applicant applied to the relevant authorities in the

United Kingdom to be transferred to serve his sentence in this jurisdiction in accordance with the terms of the Transfer Convention.

7. The applicant has exhibited a letter dated the 9th January 2007 addressed to him from the private secretary to the Minister for

Justice, Equality and Law Reform noting the applicant’s interest in a transfer to Ireland and enclosing for his information an

explanatory leaflet on the Acts. Although the applicant does not exhibit that explanatory leaflet together with the letter just

described, a copy of it is exhibited to the affidavit of Gerry McDonagh, sworn on behalf of the respondents on the 17th December

2012. Mr. McDonagh is Principal Officer of the Prisons Policy Division of the Department of Justice and Law Reform (“the Department”).

The leaflet states, in relevant part:

“What about eligibility for conditional/early release after transfer?

If you are transferred to your home country, your sentence will be administered in accordance with the laws and

regulations of your home country. Your home country will take all appropriate decisions on eligibility for conditional

release.”

8. On the 19th October 2007, Mr. Jason Ruffy of the Cross Border Transfer Section of the UK National Offender Management Service

(“NOMS”) wrote to the Department, enclosing documentation relevant to the applicant’s transfer request. One of those documents

was a sheet headed “Repatriation of Prisoners Sentence Details” in respect of Mr. Sweeney, annotated “Proposed Date of Transfer:

01/03/2008 (Out)”. That sheet records, among other details, Mr Sweeney’s sentence as one of “16 years imprisonment” and the

“Total number of days in sentence” as “5,844” i.e. the number of days in 16 years. Having noted that Mr. Sweeney’s “Conditional

Release Date (CRD)” is “06/12/2014” and that his “Sentence Licence & Expiry Date (SLED)” is 06/12/2022”, it goes on to record the

“total number of days served” as 1,404 and the “balance to serve on transfer” as 4,440 days (again representing an aggregate total

of the number of days in 16 years).

9. On the 31st July 2008, Mr. Brendan Eiffe, Assistant Principal Officer in the Prisons and Probation Policy Division of the Department,

wrote to Mr. Ruffy, communicating the State’s consent to the applicant’s transfer. In that letter, Mr. Eiffe went on to state as

follows:

“Having considered all the details which you have made available about Mr. Sweeney’s case, my opinion, based on

experience of the administration of sentences within the State and in the context of continued enforcement under the

Convention, is that if Mr. Sweeney had received a similar sentence in this jurisdiction, he could expect, save for

exceptional circumstances arising, to serve his entire sentence, allowing only for remission at the standard rate of 25%.

I note that Mr Sweeney’s conditional release date is 6 December 2014. In the event of his transfer to Ireland, he would

be eligible to earn remission of up to one quarter of the balance of his sentence left to serve from the date of the transfer

as compared to the one half remission applicable to him in the UK. His final release date in Ireland will depend on his actual

date of transfer but under normal circumstances would not, in any event, occur before his current UK release date.

I am to ask that Mr Sweeney be advised of the contents of this reply to you and that he give his consent in writing to a

transfer to Ireland subject to the arrangements/conditions outlined on the previous page. A consent form is attached for

Mr. Sweeney’s signature.”

10. On the same date, Mr Eiffe wrote to the applicant personally, informing him that the Minister had consented to his application for

transfer to Ireland under the Acts. That letter went on to state as follows:

“The enclosed documentation sets out for your information the legal consequences for you of a transfer to a prison in

Ireland. In particular you are asked to note that:-

1. If 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 your sentence (as opposed to a rate of one half in the UK), that your final release date will extend

beyond 6 December 2014.

2. You will be expected to serve the balance of your sentence in accordance with the “continued enforcement” procedure

under the Convention on the Transfer of Sentenced Persons.

3. Information in respect of remission/temporary release is attached. There can be no guarantee that the Minister would

see fit to authorise any form of temporary release in your case.

4. While every attempt will be made to take account of your personal circumstances in the event of your transfer to this

jurisdiction, there can be no guarantee of your being accommodated in any particular prison or institution.”

11. The letter just quoted concludes by reciting that a copy of the Acts and an explanatory leaflet on their operation are enclosed

with it. Another document addressed specifically to the applicant was also enclosed with that letter. It is headed “Administration of

Prison Sentences – Powers of Minister for Justice, Equality and Law Reform.” It purports to summarise the position (under the

applicable law and relevant rules) in respect of remission, release/temporary release and the role of the Parole Board. It also contains

a specific section headed “Estimate of Sentence (based on a hypothetical transfer date of 1 November 2008).” That section

comprises a table that includes the following information: estimated length of sentence remaining on 1 November 2008, 3950 days;

assuming remission at 25%, 988 days; estimated actual time to serve in Ireland, allowing for remission, 2692 days; and estimated

release date, 12 December, 2016.

12. I have described the contents of the foregoing correspondence at some length because there is a controversy about what

happened next. The applicant avers to his understanding that, when the relevant documentation arrived at HMP Lowdham Grange,

Ms. Pam Ealden, the official who was dealing with the matter there, was on holiday and the documentation was mislaid. The applicant

avers that he subsequently spoke to Mr. Eiffe (apparently by telephone) and requested that a copy of that documentation be sent to

the prison. According to the applicant, Mr. Eiffe informed him that, as the documentation concerned was extremely important, he (Mr.

Eiffe) would speak to Mr. Ruddy regarding the matter.

13. Mr. Eiffe swore an affidavit and was cross-examined at the hearing of the present application. He has no recollection of the

telephone call that the applicant describes and was not cross-examined upon that point. However, it does seem entirely consistent

with the respondents’ position in these proceedings that Mr. Eiffe may have spoken on the telephone to the applicant and, had he

done so, would have emphasised the importance of the contents of the relevant documents from the applicant’s perspective.

14. The applicant next avers that he met Ms. Ealden when she returned from holidays on which occasion she asked him to sign a

single sheet of paper. The sheet of paper concerned formed part of the documentation furnished under cover of Mr. Eiffe’s

correspondence of the 31st July 2008. That sheet is headed “Transfer of Sentenced Persons Acts, 1995 and 1997 – Consent of

Prisoner to Transfer to Ireland” and, in the context of the controversy that has arisen, it is appropriate to set out the full substance

of the text that appears beneath:

“I, Vincent Gerard Sweeney, hereby confirm that I have read Mr. Eiffe’s correspondence dated July 2008 advising me as

to the administration of my sentence on transfer to Ireland. I also confirm that I have been informed in writing in my own

language

(a) of the substance, so far as is relevant to my case, of the international arrangements between Ireland and the United

Kingdom for the repatriation of sentenced persons;

(b) of the effect in relation to me of a warrant authorising my transfer from the United Kingdom to Ireland;

(c) of the effect in relation to me of so much of the law of Ireland as has effect with respect to repatriation under these

arrangements;

(d) of the arrangements governing the continued enforcement of my sentence in Ireland;

(e) of the powers of the Minister for Justice, Equality and Law Reform under Section 9 of the Transfer of Sentenced

Persons Act, 1995, and,

(f) that I will continue to serve my sentence of 16 years imprisonment, and other concurrent sentence imposed at

Canterbury Crown Court on 7 December, 2006, as advised in Mr. Eiffe’s letter of 31st July 2008, and I hereby give my

consent to my transfer from the United Kingdom to Ireland.”

15. The applicant’s signature appears immediately beneath the text just quoted, followed by the handwritten date, the 19th August

2008, underneath which is the signature of one Kev Bentley as witness, with the same handwritten date underneath that.

16. The applicant avers that, having asked him to sign that single sheet of paper, Ms. Ealden explained to him that she would fax the

signed sheet to Ireland and that he would be on his way there soon. The applicant then expressly avers “I always understood that my

release date which had been notified to be (sic) by the sentencing Judge would not be interfered with.”

17. The applicant does not explain how he can have arrived at that understanding concerning his own transfer request or how he can

have persisted in it after he had received the Minister’s letter to him of the 9th January 2008, together with the explanatory leaflet on

the operation of the Acts that was enclosed with it. Nor does the applicant explain how he came to sign a document expressly

recording, among several other matters, that he had read Mr. Eiffe’s correspondence and that he had been informed in language he

understood of the arrangements governing the continued enforcement of his sentence in Ireland, if – as he now avers - neither of

those things was true. It is not suggested that the applicant has any literacy difficulty or any intellectual disability, nor is any such

problem evident from so much of the applicant’s correspondence as has been exhibited for the purpose of these proceedings.

18. Both parties to these proceedings have engaged in separate correspondence with various persons (either directly or through their

legal representatives) to establish what actually occurred in relation to the provision of the relevant information to the applicant in

HMP Lowdham Grange at the material time. Both parties have exhibited the replies that they have received in that regard, although

they each accept that the evidential value of that correspondence is necessarily limited. None of the authors of the correspondence

concerned gave direct evidence in these proceedings and more than one of them expressed opinions that would not have been

admissible even had they done so. Subject to that fundamental qualification, and although the Court has concluded for reasons set

out later in this judgment that nothing turns on the matter, it may nevertheless be worth summarising the various assertions that

have been made. Ms. Ealden recalls the documentation from Mr. Eiffe being sent to the prison by fax from NOMS at her request, as

she does not believe it had arrived in the post while she was on annual leave. She cannot recall being present when the applicant

signed the relevant document. Kevin Bentley, who is a prison custody officer, has written that he can recall signing and witnessing

the applicant’s paperwork, “but none other than the one page him and myself signed.” On behalf of NOMS, Christopher Binns writes

that NOMS received a letter dated the 31st July 2008 from Mr. Eiffe to the applicant with which was enclosed a further 22 pages of

information concerning the enforcement of sentences in Ireland and a consent form for the applicant to sign. NOMS sent that

information in the post on the 11th August 2008 to HMP Lowdham Grange for the attention of the applicant and of the Prison Director.

According to Mr. Binns, NOMS was subsequently alerted by the prison that the information had not been received and, as a result, 25

pages of documentation were faxed to the prison at 11.15 a.m. on the 18th August 2008 and NOMS was subsequently notified that

the documentation concerned was forwarded to the applicant on the same day. The documentation comprised:

“1. Administration of Prison Sentences, Powers of Minister for Justice, Equality and Law Reform.

2. Transfer of Sentenced Persons Acts 1995 and 1997; Consent of Prisoner to Transfer to Ireland.

3. Statement of information Relating to the Transfer of Sentenced Persons.

4. Transfer of Sentenced Persons Act 1995.

5. Transfer of Sentenced Persons (Amendment) Act 1997.

6. Transfer of Sentenced Persons Act 1995 and 1997: Information Leaflet.

Covering letter from NOMS dated 11 August accompanied this information and they were addressed to the prison Director

and Mr. Sweeney. These letters were in addition to the letter addressed to Mr. Sweeney from Mr. Eiffe dated 31 July

2008. The letters from NOMS and Mr Eiffe specifically refer the prisoner to the documents sent by the Irish authorities

which set out the consequences of Mr Sweeney’s transfer.”

The transfer

19. Mr. Ruffy of NOMS wrote to Mr. Eiffe in the Department on the 19th August 2008, informing him that the United Kingdom

authorities were consenting to the transfer and enclosing a copy of Mr. Sweeney’s signed and witnessed declaration of consent as

already described above.

20. The Minister for Justice provided his consent to the transfer of the applicant into the State under section 6 of the Acts by

certificate signed on the 16th September 2008. On the 15th October 2008, an application was made for the issue of a warrant

pursuant to the terms of section 7 of those Acts. A warrant issued in response to that application on the 22nd October 2008,

authorising the execution of an Order to bring the applicant in custody into the State and to lodge him in Mountjoy Prison to serve his

sentence there.

21. The applicant was transferred to Ireland on the 16th December 2008.

The applicant’s release date

22. The applicant avers that there was some confusion concerning his release date during the period after his transfer and that

various purported release dates were suggested to him by different officials at different times. However, it is common case that, on

the 5th March 2010, the Prisons Policy Division of the Department wrote to the applicant (who was then detained at Castlerea Prison,

County Roscommon) in the following terms.

“As you are aware, the correspondence to you from Mr. Eiffe of this Department dated 31 July, 2008 was based on a

hypothetical transfer date of 1 November, 2008 and estimated your release date in Ireland assuming remission to be 12

December, 2016

I can inform you that your release date has been re-calculated based on your actual date of transfer to Ireland which

occurred on 16 December, 2008. Your release date in Ireland with remission will be 16 November, 2016. This date

has been confirmed with the Operations Directorate of the Irish Prison Service, Longford.”

The proceedings

23. The applicant was granted leave to seek judicial review by Order of Peart J made on the 26th March 2012. The applicant avers, in

essence, that it took him some time after his transfer into the jurisdiction to establish the precise details of the sentence he is

required to serve here. The applicant’s solicitor has averred that it was necessary take instructions from the applicant in custody, to

pursue a Freedom of Information Act request with the Department of Justice on the applicant’s behalf, and to obtain appropriate

expert evidence of United Kingdom law before instituting the present proceedings. No issue has been taken on behalf of the

respondents in relation to the time limits that apply to applications for judicial review.

The argument

24. The applicant’s argument is that his continued detention beyond the 29th March 2014 is ultra vires the Acts in that the legal

nature of the sentence imposed by the sentencing state in this case is not one of 16 years imprisonment but, in effect, one of eight

years spent in custody followed by eight years of release into the community under licence.

25. This argument is based upon the provisions of English law that govern the administration of prison sentences of 12 months or

more. Each side has filed an affidavit sworn by an expert in English law. Beyond a very limited difference of emphasis, there does not

seem to be any significant disagreement between those experts. They agree that the relevant provisions of the UK Criminal Justice

Act 2003 govern the position in that jurisdiction.

26. As David Perry Q.C. avers on behalf of the respondents, section 244 of the Criminal Justice Act 2003 states:

“(1) As soon as a fixed-term prisoner…has served the requisite custodial period, it is the duty of the Secretary of State

to release him on licence under this section.

…

(3) In this section “the requisite custodial period” means-

(a) in relation to a person serving a sentence of imprisonment for a term of 12 months or more…, one half of his

sentence.”

27. On behalf of the applicant, significant reliance in placed on the following paragraph in Mr. Perry’s affidavit:

“I say that the sentence passed is not simply a statement of the period of time that an offender must spend in prison. A

determinate sentence of imprisonment of 12 months or more has two parts. The first part is the custodial period. This

comprises one half of the sentence. The second part of the sentence is to be served in the community. The offender is

then subject to licence conditions for the entirety of that period. The entitlement to release on licence is automatic. A

failure to release a prisoner on licence will result in further imprisonment being unlawful. During the licence period the

Secretary of State may recall the offender to prison as explained above.”

28. The applicant further particularly relies on the following extract from the Sentencing Guidelines Council of England and Wales New

Sentences: Criminal Justice Act 2003 – Guideline (exhibited to the affidavit of Kenneth Carr, sworn on 12th March 2012 on behalf of

the applicant):

“B. Imposition of Custodial Sentences of 12 Months or more

(i) Length of Sentence

2.1.5 The requirement that the second half of a prison sentence will be served in the community subject to conditions

imposed prior to release is a major new development and will require offenders to be under supervision for the full duration

of the sentence prescribed by the court. The Probation Service will be able to impose a number of complementary

requirements on the offender during the second half of a custodial sentence and these are expected to more demanding

and involve greater restriction on liberty than current licence conditions.

2.1.6 As well as restricting liberty to a greater extent, the new requirements will last until the very end of the sentence,

rather than the three-quarter point as at present, potentially making a custodial sentence significantly more demanding

than under existing legislation. Breach of these requirements at any stage is likely to result to result in the offender being

returned to custody and this risk continues, therefore, for longer under the new framework than under the existing

legislation.

…

2.1.10 The changes in the nature of a custodial sentence will require changes in the way the sentence is announced.

Sentencers need to continue to spell out the practical implications of the sentence being imposed so that offenders,

victims and the public alike all understand that the sentence does not end when the offender is released from custody.

The fact that a breach of the requirements imposed in the second half of the sentence is likely to result in a return to

custody should also be made very clear at the point of sentence.

…

When announcing sentence, sentencers should explain the way in which the sentence has been calculated, how it will be

served and the implications of non-compliance with licence requirements. In particular, it needs to be stated clearly that

the sentence is in two parts, one in custody and one under supervision in the community.”

29. In light of the foregoing, the applicant submits that the legal nature of the sentence concerned in his case, imposed by the

relevant court in England as a court of the sentencing state concerned, is one of 8 years imprisonment (and 8 years release on

licence into the community). It follows, or so the applicant contends, that the warrant issued on the 22nd October 2008 ordering that

he serve a sentence of “16 years imprisonment with 252 days on remand taken into consideration” is ultra vires section 7(4) of the

Transfer of Sentenced Persons Acts, 1995 and 1997, in that it purports to go beyond the continued enforcement by the State of the

sentence concerned imposed by the sentencing state concerned in its legal nature, which that section permits. On that basis, the

applicant contends that, in considering the issue of a warrant to authorise the continued enforcement in the State of the sentence

imposed on the applicant in England, the High Court should have adapted that sentence to one of 16 years imprisonment with 8 years

of that sentence suspended on conditions designed to mirror the standard licence conditions and/or the conditions prescribed by the

Secretary of State that are imposed on a prisoner in England who is released after serving half of a determinate sentence of more

than 12 months. The applicant contends that he should have been legally represented for the purpose of the relevant warrant

application on the basis that the relevant proceedings should be considered as directly analogous to a criminal sentencing. Finally, the

applicant contends that the continued enforcement of his sentence under the warrant now at issue is a disproportionate interference

with the his right to liberty and the security of the person under the European Convention on Human Rights in view of the disparity

between his conditional release date in the United Kingdom and his unconditional release date (with remission) in this jurisdiction.

Prison law compared

30. The experts retained by both sides in this case agree that, in the United Kingdom, the administration of the applicant’s sentence

was governed by the provisions of the UK Criminal Justice Act 2003 and that, had the applicant remained in custody in England, he

would have been required to serve half of his sentence in custody, at which point he would have been entitled to conditional release

(or release on licence) into the community. Those conditions (and that licence) would have remained in force for the entire duration

of the applicant’s 16-year sentence. This means that, while his conditional release date was the 6th December 2014, he would have

remained on licence until the 6th December 2022, which was his “Sentence Licence & Expiry Date (SLED)”.

31. As the sentencing guideline document of the Sentencing Guidelines Council of England and Wales New Sentences: Criminal Justice

Act 2003 – Guideline already quoted above makes clear, the conditions imposed by the Probation Service under that Act are more

demanding and involve greater restriction on liberty than those formerly imposed in that jurisdiction. Breach of those conditions at any

stage during that entire period would have been likely to to result in the applicant being returned to custody. The standard licence

conditions include restrictions or controls upon place of residence, nature and change of employment, and travel outside the United

Kingdom. In addition, there is a discretion to impose conditions of a kind prescribed by the Secretary of State.

32. The applicant could have had no eligibility for remission of any sort, as remission was abolished by the UK Criminal Justice Act

1991

33. Having transferred to Ireland on the 16th December 2008, the applicant has been informed that his release date, with remission,

will be the 16th November 2016. As the applicant acknowledges, that calculation is based, in part, on according him the benefit of

two separate periods of remission. First, the applicant has been given credit for the 952 days he spent in custody in the United

Kingdom prior to his transfer to Ireland as though he was eligible for 50% remission on time served there (rather than for release on

licence there after he had served half his sentence), thereby according him 952 days remission in calculating the remaining period of

imprisonment he is required to serve in this jurisdiction. Second, he is deemed eligible to earn remission of up to a further 25% of that

remaining period of imprisonment, under the ordinary rules for the government of prisons applicable to all persons serving determinate

sentences in Ireland. The release of a prisoner credited with remission is full and unconditional release (although the availability of full

remission is, of course, contingent on the maintenance of good conduct while in prison).

34. It must also be remembered that the applicant sought his transfer to Ireland in order to be closer to his family. In the affidavit

that grounds the present application, the applicant has addressed at length the difficulties and hardship that he experienced in

serving his sentence in England. He describes the inability of his elderly mother, who lives in Fermanagh, to visit him, and the 24-hour

round trip that his other family members had to make to visit him from either Sligo or Fermanagh, resulting in just one visit from one

family member each month for the duration of his imprisonment there. The recitals contained in the preamble to the Transfer

Convention record the signatory States’ objective of further developing international co-operation in the field of criminal law, and that

such co-operation should further the ends of justice and the social rehabilitation of sentenced persons, and that the said objective

requires that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the

opportunity to serve their sentences within their society.

35. In summary then, in transferring to Ireland from England, the applicant lost the entitlement that he would have had in the latter

jurisdiction to release on licence under strict conditions on the 29th March 2014 (subject to those conditions, and to potential recall,

at any time until the 29th March 2022), whereas he gained an entitlement to serve his sentence within his own society near his own

family and to unconditional (although contingent) release on the 16th November 2016.

The law

36. As Charleton J. concluded in Caffrey v. Governor of Portlaoise Prison [2010] IEHC 213, the Acts fall to be construed in the light of

the Transfer Convention, not only because specific reference is made to the latter by the former but also because the text of the

legislation is clearly designed to give effect to the applicable provisions of the Convention.

37. Section 7 of the Acts deals with the procedure to be followed where the Minister consents to a request for the transfer of a

sentenced person into the State, whereby a warrant may be issued by the High Court authorising the bringing of a sentenced person

into the State and the taking of that person to, and his detention in custody at, such place or places in the State as are specified in

that warrant. The provisions of that section upon which the applicant places particular reliance for the purposes of his argument are

the following:

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

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

nature and duration, with due regard to any remission of sentence accrued in the sentencing state, but such a warrant

shall otherwise have the same force and effect as a warrant imposing a sentence following a conviction by that court.

(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 either event, either-

(i) aggravate it, or

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

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

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

shall not, in any event, either-

(i) aggravate it, or

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

…

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

such sentence.”

38. The word “sentence” is expressly defined in section 1 of the Acts to mean “any punishment or measure involving deprivation of

liberty ordered by a court or tribunal for a limited or unlimited period of time on account of the commission of an offence.” The term

“sentence” is also specifically defined in Article 1 of the 1983 Convention on the Transfer of Sentenced Persons to mean “any

punishment or measure involving deprivation of liberty ordered by a court for a limited or unlimited period of time on account of a

criminal offence.”

39. Under the express terms of Article 9.3 of the Transfer Convention, “[t]he enforcement of a sentence shall be governed by the law

of the administering State and that State alone shall be competent to take all relevant decisions.” In this context it is important to

remember that Ireland’s instrument of ratification of the Transfer Convention, deposited on the 31st July 1995, contains a declaration

excluding the “conversion of sentence” procedure provided for in Article 9.1(b) of the Transfer Convention in cases where Ireland is

the administering State. Instead, it is the “continuation of enforcement” procedure provided for in Article 9.1(a) of the Transfer

Convention to which effect is given by section 7 of the Acts.

Analysis

40. It is clear that the relevant court or tribunal in this case, for the purpose of the foregoing definitions, was Canterbury Crown

Court and that the punishment imposed on the applicant by that court for the criminal offences of which he was convicted was one

of 16 years imprisonment (with 252 days spent in custody on remand to count towards that sentence).

41. There is no doubt that, in imposing a sentence of the relevant length, the Crown Court was required under the applicable

sentencing guidelines to inform the applicant of the statutory duty imposed by the British Parliament on the Secretary of State when

administering that sentence to grant the applicant conditional release on licence once he had served one half of it. Nor is there any

doubt that the Crown Court so informed the applicant in this case. However, that does not alter the legal nature of the sentence

imposed by that court. The relevant requirement plainly operates to inform a sentenced person - such as the applicant - of the effect

of the law governing the administration of his sentence in the United Kingdom but, under the provisions of the Transfer Convention

which section 7 of the Acts is intended to implement, once a sentenced person has been transferred to another Convention State (as

administering State), the enforcement of the relevant sentence is governed by the law of the administering State and that State

alone is competent to take all relevant decisions.

42. In Caffrey v. Governor of Portlaoise [2012] 1 I.R. 637, the issue presented concerned the legal nature of the sentence imposed

on a prisoner transferred from the U.K. who had been convicted of murder there and sentenced to life imprisonment with a

recommendation by the trial judge that he serve a minimum tariff period of 12 years imprisonment. The Supreme Court (per Denham

C.J., Hardiman and Macken JJ concurring) found that the sentence imposed in England was a mandatory sentence and was

imprisonment for life. Fennelly J. (dissenting, with him Murray J.) took the view that the expression “legal nature” is one of broad

import, and that the legal nature of the sentence imposed in that case was one of 12 years imprisonment (by way of retribution and

general deterrence), followed by any further period of imprisonment that the prisoner may be required to serve thereafter (justified

exclusively on grounds of public protection), which latter period of imprisonment was not compatible with Irish law in that it amounted

to impermissible preventative detention. For the purpose of the present judgment it is only necessary to note that the different

conceptions of the “legal nature” of the sentence at issue in that case were both squarely based upon the sentence directly imposed

by the trial court in that case. There was no question in that case of the Supreme Court expanding the import of the term “the legal

nature of the sentence concerned” to encompass, not only the punishment ordered by the relevant court, but also the law or

practice governing the enforcement of that sentence.

43. Having carefully considered the foregoing principles, I have concluded that the legal nature of the sentence imposed on the

applicant in this case, that is to say the legal nature of the punishment ordered by the relevant court, was that he should serve a

sentence of imprisonment of 16 years, with 252 days spent in custody on remand to count towards that period. It follows that the

warrant issued on the 22nd October 2008 ordering that the applicant serve a sentence of “16 years imprisonment with 252 days on

remand taken into consideration” is intra vires section 7(4) of the Transfer of Sentenced Persons Acts, 1995 and 1997, in that it does

not go beyond the continued enforcement by the State of the sentence concerned imposed by the sentencing state concerned in its

legal nature, which that section permits.

44. In case I am wrong in that conclusion, and in view of the issue of personal liberty that is at stake, I propose to address the

applicant’s remaining arguments, notwithstanding the fact that most, if not all of them, might well be considered to depend for their

force and effect on a preliminary finding that, in stipulating a sentence of “16 years imprisonment with 252 days on remand taken into

consideration” on the face of the warrant issued by it on the 22nd October 2008, this Court was acting ultra vires section 7 of the

Acts.

45. The first such argument is that, in considering whether to issue a warrant authorising the continued enforcement in the State of

the sentence imposed on the applicant in England, the High Court should have adapted that sentence to one of 16 years

imprisonment with 8 years of that sentence suspended on conditions designed to mirror the standard licence conditions and/or the

conditions prescribed by the Secretary of State that are imposed on a prisoner released after serving half of a determinate sentence

of more than 12 months in England.

46. As section 7(5) of the Acts expressly states, the power of this Court to adapt the legal nature of the sentence imposed by the

sentencing state when issuing a warrant authorising the transfer into, and detention within, the State of a sentenced person, arises

only “if the sentence concerned imposed by the sentencing state concerned is by its legal nature incompatible with the law of the

State.”

47. As a matter of general principle, a sentence of 16 years imprisonment is not by its legal nature incompatible with the law of the

State. It scarcely needs to be pointed out that the sanction or punishment of imprisonment is well known to Irish law. There is no

incompatibility between the sentence received by the applicant in England and the penalty prescribed by the law of this State for a

similar offence. The English court applied no condition or qualification on the sentence of 16 years imprisonment, which it imposed,

that altered the legal nature of that punishment. Accordingly, I can find no incompatibility with the law of the State in respect of that

sentence that would have permitted the High Court to exercise the adaptation power conferred upon it by section 7(5) of the Acts.

48. That being so, there was no scope for a hearing of any kind under that sub-section and, in consequence, there is no basis for the

applicant’s next argument that such a hearing should have been conducted in a manner directly analogous to a criminal sentencing (or

re-sentencing).

49. The applicant’s contention that the continued enforcement of his sentence under the warrant now at issue amounts to a

disproportionate interference with his right to liberty and the security of the person under the European Convention on Human Rights

might be considered a separate and free-standing argument. As noted earlier in this judgment, that argument relies for its force on

the disparity between the applicant’s conditional release date in the United Kingdom (the 29th March 2014) and his unconditional

release date (with remission) in this jurisdiction (the 16th November 2016).

50. In Szabo v. Sweden (dec.), no. 28578/03, 27 June 2006, the European Court of Human Rights (“the ECtHR”) was required to

consider whether the involuntary transfer of the applicant in that case from Sweden to Hungary under the Transfer Convention in

respect of a 10 year sentence for drugs offences imposed on the 18th December 2000 was in breach of the fair trial requirements of

Article 5(1)(a) of the European Convention on Human Rights because the date of his eligibility for conditional release in Sweden (the

25th May 2007) was 16 months earlier than the date of his eligibility for conditional release in Hungary (the 22nd September 2008)

and because prison conditions were stricter in Hungary than in Sweden .

51. In addressing that submission, the ECtHR stated:

“To lay down a strict requirement that the sentence to be served in the administering country should not exceed the

sentence that would have to be served in the sentencing country would also thwart the current trend towards

strengthening international co-operation in the administration of justice, a trend which is reflected in the Transfer

Convention and is, in principle in the interests of the person concerned (see Drozd and Janousek v. France and Spain,

judgment of 26 June 1992, Series A no. 240, pp. 34-35, § 110). Accordingly, the possibility of a longer period of

imprisonment in the administering state does not in itself render the deprivation of liberty arbitrary as long as the

sentence to be served does not exceed the sentence imposed in the original criminal proceedings.

Nevertheless, the Court does not exclude the possibility that a flagrantly longer de facto term of imprisonment in the

administering State could give rise to an issue under Article 5, and hence engage the responsibility of the sentencing

State under that Article. However, the sentencing State could only be responsible for consequences which were

foreseeable at the time when the transfer decisions were taken.

As has been noted above, following the applicant’s transfer to Hungary he is likely to serve eight years of his ten-year

prison sentence, whereas he could have expected to serve six years and eight months of that sentence in Sweden. While

the difference of one year and four months certainly cannot be considered insignificant, the time he will serve remains

well within the sentence imposed. Moreover, the likely additional period of detention in Hungary corresponds to 20% of

the time he could have expected to serve in Sweden. In these circumstances, the Court finds that the longer de facto

term of imprisonment is not so disproportionate that it will entail a breach of Article 5.

Furthermore, this conclusion is not altered by the fact that, as the applicant claimed, the prison conditions may be

stricter in Hungary than in Sweden. In this connection, the Court reiterates that, in its decision of 26 October 2004, it

declared a similar complaint submitted by the applicant under Article 3 of the Convention, inadmissible as being manifestly

unfounded.”

52. Applying that analysis to the circumstances of the present case, I consider the following matters to be relevant:

(i) Following the applicant’s transfer to Ireland he will serve approximately 10 years and 8 months of his 16 year sentence,

whereas he could have expected to serve 8 years of that sentence in custody in the United Kingdom.

(ii) While there is a difference of 32 months, the sentence the applicant will serve in this jurisdiction remains well within

the sentence imposed in the United Kingdom.

(iii) The likely additional period of detention in Ireland corresponds to one third of the time the applicant could have

expected to serve in the UK.

(iv) In this case, unlike in Szabo, the later release contemplated in Ireland is unconditional release whereas the release

contemplated in the United Kingdom was conditional release on licence effective until the 29th March 2022.

(v) The applicant is detained in an open prison in this jurisdiction and, in any event, no question arises of the applicant

being detained under stricter conditions in Ireland than in England.

(vi) In this case, unlike in Szabo, the applicant requested the relevant transfer under the Transfer Convention on the

basis that it would, if granted, ameliorate the hardship of imprisonment for him by facilitating closer contact with his

family.

53. In light of those circumstances, the Court is satisfied that the additional period of detention that the applicant may serve in

Ireland is not so disproportionate as to entail a breach of Article 5, or of any other provision, of the European Convention on Human

Rights.

The issue of consent

54. One final matter, addressed at some length earlier in this judgment, concerns the circumstances in which the applicant, while still

a prisoner in HMP Lowdham Grange, came to furnish a signed witnessed consent to his transfer to Ireland. The applicant asserts that

he did so although he had not had sight of the extensive materials that accompanied that consent form, and which clearly set out, as

part of the information provided, details of the applicant’s estimated release date in this jurisdiction. The matter is relevant to the

applicant’s contention that he “always understood” that the conditional release date notified to him by the sentencing judge “would

not be interfered with” in the event of his transfer to Ireland.

55. It is not necessary to make any finding of fact concerning the applicant’s state of knowledge at the time of his transfer, as it

became clear in the course of argument before the Court that nothing turns on the issue. The respondents made clear that their

opposition to the present application is not based on the argument that the lawfulness of the applicant’s detention is based on

acquiescence, or informed consent, in relation to the duration of his proposed imprisonment within the State. No such argument could

succeed in light of the following dictum of Charleton J. in Caffrey v. Governor of Portlaoise Prison [2010] IEHC 213:

“The idea of consent is central to the transfer scheme whereby prisoners are brought from one State to another to serve

out the sentence. What prisoners are consenting to, in that regard, is not that their detention should continue beyond

the appropriate time, or that it should continue within circumstances that infringe the guarantee of liberty contained in

Article 40.4.2° of the Constitution but, rather, that they should be transferred from one jurisdiction to another.”

56. Equally, the Court understands that the applicant does not contend that the conditions necessary for the Minister’s consent to

the applicant’s transfer request, under section 6(5) of the Acts were not present in this case. That is to say that the Minister was

satisfied that all reasonable steps had been taken to inform the applicant in writing in English of the following matters: (a) the

substance of the international arrangements relevant to his proposed transfer; (b) the effect of the warrant that may be issued in

respect of his transfer to, and detention in, the State; (c) the effect of the law in relation to his detention within the State under

that warrant; and (d) the powers of the Minister to apply to the High Court to revoke or vary the warrant in appropriate

circumstances.

57. In that context it should be noted that, before the Minister issued a certificate, pursuant to the provisions of section 6(6) of the

Acts, consenting to the transfer on the 16th September 2008, he would have been aware of the following facts: (a) that a letter had

been written to the applicant on his behalf on the 9th January 2007, enclosing an explanatory leaflet on the Acts and on the

applicant’s eligibility for conditional/early release after transfer; (b) that two letters had been written on the 31st July 2008, one to

the relevant authorities in the UK and one to the applicant directly, each of which, in conjunction with the accompanying materials,

contained the relevant information for the purposes of section 6(5) of the Acts; and (c), most significantly, that he had received a

witnessed consent form, signed by the applicant on the 19th August 2008, in which the applicant expressly acknowledges that he had

been informed in writing in his own language of all of the relevant matters.

58. It is true that Article 7(1) of the Transfer Convention imposes an obligation on the sentencing state to ensure that the person

required to give consent to the transfer does so voluntarily and with full knowledge of the legal consequences thereof. However, the

same Article goes on to provide that the procedure for giving such consent is governed by the law of the sentencing state, in this

case the United Kingdom. It follows that, for a variety of practical and jurisdictional reasons, this Court is in no position to adjudicate

on what did, or did not, occur at HMP Lowdham Grange at the material times in July and August 2008. Were the Court in a position to

do so, it would require significantly more evidence from the applicant concerning the correspondence he did receive and the consent

form that he did sign, before it could reasonably conclude that, on the balance of probabilities, he was not aware that his conditional

release date in the United Kingdom would not apply to his imprisonment in Ireland.

Conclusion

59. For the reasons set out above, this Court is satisfied that the continued detention of the applicant pursuant to the terms of the

warrant issued by this Court on the 22nd November 2008 is in accordance with law and will remain so after the 29th March 2014. The

relief sought is, therefore, refused.