S4 Caffrey v The Governor of Portlaoise Prison [2012] IESC 4 (01 February 2012)


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Supreme Court of Ireland Decisions


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URL: http://www.bailii.org/ie/cases/IESC/2012/S4.html
Cite as: [2012] IESC 4

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Judgment Title: Caffrey v The Governor of Portlaoise Prison

Neutral Citation: [2012] IESC 4

Supreme Court Record Number: 267 & 283/10

High Court Record Number: 2010 521 SS

Date of Delivery: 01/02/2012

Court: Supreme Court

Composition of Court: Denham C.J., Murray J., Hardiman J., Fennelly J., Macken J.

Judgment by: Denham C.J.

Status of Judgment: Approved

Judgments by
Link to Judgment
Result
Concurring
Dissenting
Denham C.J.
Appeal dismissed - affirm High Court Order
Hardiman J., Macken J.
Fennelly J.
Fennelly J.
Murray J.


Outcome: Dismiss




THE SUPREME COURT
[Appeal No: 267/2010]

Denham C.J.
Murray J.
Hardiman J.
Fennelly J.
Macken J.



Between/


Jonathon Caffrey
Applicant/Appellant
And

The Governor of Portlaoise Prison

Respondent/Respondent

Judgment delivered on the 1st day of February 2012, by Denham C.J.

1. This is an appeal by Jonathon Caffrey, the applicant/appellant, referred to as “the appellant”, from the judgment and order of the High Court (Charleton J.) delivered on the 20th May, 2010, which refused the appellant’s application under Article 40.4 of the Constitution of Ireland. The Governor of Portlaoise Prison is the respondent, and is referred to as “the respondent”.

2. The respondent has served a notice to vary the judgment and order of the High Court delivered on the 20th May, 2010.

3. The appellant brought his application in the High Court to seek an enquiry into the lawfulness of his detention, pursuant to Article 40.4 of the Constitution of Ireland, 1937. The application was grounded on the affidavit of Barry Powderly, Solicitor, deposed on the 25th March, 2010, to which there were a number of exhibits.

4. On the 26th March, 2010, the High Court (Hedigan J.) ordered, in accordance with Article 40.4.2 of the Constitution, that the respondent produce the appellant before the Court at 11 o’clock on the 31st March, 2010, and certify in writing the grounds of his detention.

5. A replying affidavit was filed by Brendan Eiffe, an Assistant Principal Officer of the Prisons Policy Division, Department of Justice, Equality and Law Reform, on the 31st March, 2010. To this affidavit there were a number of exhibits also.

Certificate
6. Pursuant to the order of the High Court made on the 26th March, 2010, the Assistant Governor of Portlaoise Prison certified in writing the grounds for the detention of the appellant. He stated:-

      “I, Christopher McCormack, Assistant Governor of Portlaoise Prison, hereby certify as follows: I hold the [appellant] in custody in Portlaoise Prison pursuant to warrant pursuant to section 7 of the Transfer of Sentence Persons Act, 1995, dated the 31st August, 2004. I refer to the said warrant when produced and to a photostat copy thereof upon which is pinned together and marked “A” I have endorsed my name before the signing hereof.”
The document was signed by Christopher McCormack and dated the 31st March, 2010.

Warrant
7. The warrant, to which there was reference in the certified grounds for the detention of the appellant, and upon which the appellant is held in custody, recites as follows:-


“THE HIGH COURT

Record Number

WARRANT PURSUANT TO SECTION 7 OF THE TRANSFER OF SENTENCED PERSONS ACT, 1995

APPLICANT: THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

SENTENCED PERSON: JONATHON CAFFREY

SENTENCING STATE: UNITED KINGDOM OF GREAT BRITAIN

AND NORTHERN IRELAND

CRIME: MURDER

SENTENCE IMPOSED

BY SENTENCING

STATE: LIFE IMPRISONMENT

DATE OF

COMMENCEMENT OF

SENTENCE: 15th December 1999

Whereas upon the hearing of an application at the High Court held at the Four Courts, Dublin on the 12th day of July 2004 for the issue of a Warrant authorising the bringing of the said sentenced person into the State from a place outside the State, and the taking of the said person and custody to and the persons detention in the State, the Court was satisfied that:-

        (a) The said sentenced person is regarded as a national of the State within the meaning of Section 6(3)(a) of the Transfer of Sentenced Persons Acts, 1995 to 1997;

        (b) The sentence imposed on the said sentenced person by the said sentencing State is final;

        (c) At the time of the request for a transfer into the State, the said sentenced person had at least six months of the sentence imposed by the said sentencing state left to serve;

        (d) The said sentenced person consents in writing to a transfer into the State;

        (e) The acts or omissions constituting the said offence would, if done or made in or on the territory of the State constitute an offence under the law of the State, to wit murder contrary to common law and Section 4 of the Criminal Justice Act, 1964 and Section 2 of the Criminal Justice Act, 1990 which said offence in this jurisdiction carries a mandatory penalty of life imprisonment upon conviction.

        (f) The Minister for Justice, Equality and Law Reform consents to the transfer concerned.

An Order was made authorising the bringing of the said sentenced person into the State and the taking of the said person in custody to, and his detention in custody at Mountjoy Prison and to serve his sentence there.

THIS IS TO AUTHORISE YOU to whom this Warrant is addressed to execute the said Order against the said person as follows:-

To bring the said sentenced person in custody into the State and to lodge the said person in Mountjoy Prison to serve his sentence there.

And for this the present Warrant shall be sufficient authority to all whom it may concern.

Signed: [Signature]

Registrar of the High Court

Dated the 31st day of August 2004

To: Governor of Mountjoy Prison.”

The custody of the appellant, the sentence, the imprisonment in Ireland, is grounded on this warrant.

8. A supplementary affidavit was filed by Barry Powderly, deposed on the 14th April, 2010, on behalf of the appellant. Attached to this affidavit were a number of exhibits, including a letter dated the 3rd July, 2003, written by Anne O’Gorman, Principal officer, Prisons Policy Division of the Department of Justice, Equality and Law Reform, to the appellant. It stated:-

      “Dear Mr. Caffrey,

      I am directed by the Minister for Justice, Equality and Law Reform to inform you that the Minister has consented to your application to transfer here under the Transfer of Sentenced Persons Act, 1995 and 1997. 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, you should expect, save for exceptional circumstances arising, to serve at a minimum, the tariff imposed in the UK (excluding time deemed to be served in the U.K.).

            (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.

      A copy of the Transfer of Sentenced Persons Act, 1995 and 1997 and an explanatory leaflet on its operation are also enclosed for your information.

      Yours sincerely,”

9. By letter dated the 26th March, 2010, from the Department of Justice, Equality and Law Reform, the appellant’s solicitors had been informed inter alia,
      “The acts or omissions constituting the offence concerned, namely murder contrary to common law would if done or made in or on the territory of the State constitute an offence under the law of the State, to wit murder contrary to common law which carries a mandatory penalty of life imprisonment upon conviction. Your client’s sentence is compatible with Irish law and therefore there was no need for the sentence to be adapted by the Irish Courts. I am to inform you that remission is not applicable for life sentenced prisoners both here or in the United Kingdom.”
10. The appellant filed an affidavit which he deposed on the 16th April, 2010. Amongst other points he raised the matter that since he had then been in prison for more than 12 years, his tariff expired on the 23rd March, 2010, which meant that the punishment and deterrence element of his sentence had expired, and since preventative detention is not permitted under Irish law, there was no basis for his detention.

11. A supplemental affidavit by Brendan Eiffe was deposed on 23rd April, 2010, and filed on behalf of the respondent, where matters of fact were engaged.

12. There is also an affidavit of David Perry, Q.C., before the Court, explaining the law in England and Wales governing sentences of imprisonment for life following conviction for murder. Foreign law is, of course, a matter of fact for a court in this jurisdiction.


The High Court

13. The learned High Court judge delivered his judgment on the 20th May, 2010. The facts, as summarised by the High Court, include the following: The appellant is serving life imprisonment, a sentence that was imposed in England in December, 1999, for the murder in that jurisdiction of Andrew Cook in November, 1994. As in Ireland, a conviction for murder in England carries a mandatory sentence of imprisonment for life. However, in England a trial judge, unlike in Ireland, may make a recommendation as to the minimum term to be served. In the case of the appellant there was a recommendation of twelve years. The appellant’s sentence was back dated to begin in March, 1998, when he was first taken into custody. Thus, the twelve years minimum recommended by the judge in England expired in March, 2010. The appellant claimed that the nature of the sentence that he was given in England comprised a punitive element of twelve years followed by preventative detention for the rest of his life. In May 2005 the appellant was transferred from prison in England to Ireland to serve the balance of his sentence, nearer to his family. It was argued on his behalf that as a preventative detention is a concept unknown in Irish sentencing law, and as the appellant has served the punitive element, he should be released.

14. The offence took place on the 6th November, 1994. The appellant, Brett Evans and Justin Reiss went to the home of Andrew Cook, in England; a row broke out over an allegation of sexual infidelity with a girl who was not present. The appellant beat Andrew Cook so badly that he was rendered senseless and unconscious in his living room. Brett Evans then got a knife from the kitchen and, sitting astride the victim, stabbed him a number of times. He left the knife stuck into his neck. Most of the evidence came from Justin Reiss who, it was alleged, was not involved in the attack. The body was not discovered for a number of days.

15. The appellant was convicted of murder. The Court of Appeal in England, in an appeal against the conviction, in a judgment of 22nd March, 2001, held the conviction to be safe and satisfactory: R. v. Evans and Caffrey [2001] EWCA Crim 730.

16. The appellant was sentenced to life imprisonment for the murder. The trial judge set a tariff, referred to as the period of years to be served in custody necessary to meet the requirements of retribution and general deterrence, at twelve years. However, the order of the Central Criminal Court in England is for imprisonment for life on the count of murder.

17. The learned High Court judge, when reviewing the provisions of the Transfer of Sentenced Persons Act, 1995, as amended by the Transfer of Sentenced Persons (Amendment) Act, 1997, referred to as “the Act of 1995, as amended,” noted that a transferred prisoner is entitled to have credited to him or her such remission of sentence as he or she has earned in the sentencing State according to the sentencing State’s law. However, when the prisoner is transferred to Ireland, Irish law governs any further remission. Thus, it was held, the practical effect is that although transferred prisoners are given credit for remission in accordance with the law of the sentencing State, any further remission is in accordance with Irish legislation and the Prison Rules.

18. The High Court noted that the appellant was interviewed by the Parole Board in November, 2006, and he was not granted release. The Parole Board recommended that he continue with his education and engage with the therapeutic services in relation to offence focussed work. A review was promised two years later. In May 2009, the Parole Board reviewed the appellant’s case again and decided to recommend that should the appellant continue to engage positively with the services available to him in prison, that they would consider, in May 2010, transferring him to the training unit. Following this, in 2011, a release plan would be put in place. The High Court held:-

      “This administration of the appellant’s sentence in Ireland clearly focuses on the issue of rehabilitation. The Parole Board is of the view that he is not yet ready to be released but that the time when he can be released, with appropriate safeguards, is approaching within the next few years.”
Nature of Sentence

19. The High Court concluded that the nature of the sentence imposed on the appellant is one of imprisonment and that its duration is for life. The High Court was of the view that s. 7(10) of the Act of 1995 makes it clear that a reference to the legal nature of a sentence does not include a reference to the duration of such a sentence. It was held that under the Act the administering State is prohibited from commuting a sentence of imprisonment into another kind of sentence.

20. The High Court considered the Convention on the Transfer of Sentenced Persons signed in Strasbourg on the 21st March, 1983. The High Court was satisfied that the Act of 1995, as amended, should be construed in light of the Convention.

21. The High Court held:-

      “There is nothing in the Convention which leads me to the conclusion that the nature of a sentence is changed by the motivation for imposing it, or the underlying rationale in administering it. Once a sentence is, of its nature, a sentence for life imprisonment, then, under Article 9.3, it is for the administering state to enforce it and ‘to take all appropriate decisions’. A sentence would be changed as to its nature if, for instance, under Article 10.2, the punishment were adapted so as to conform to the law of the administering state as to what the nature of a sentence is, within the meaning of the Convention, this is made clear by Article 11.1(b) whereby it is forbidden to convert any sentence of imprisonment, that is one ‘involving deprivation of liberty’ into a pecuniary sanction.”
22. The High Court concluded that the nature of a sentence of life imprisonment in England is, as to its nature, the same as a sentence of life imprisonment in Ireland. It was held that the nature of the sentence to be served, on conviction for murder in Ireland and England, is life imprisonment, that is its nature, and that is what s. 7(4) of the Act of 1995, as amended, refers to. The nature of the sentence imposed on the appellant being one of life imprisonment the learned High Court judge held that there are no grounds for declaring the detention of the appellant to be unlawful. The High Court held that the nature of life imprisonment is not changed as between Ireland and England when a prisoner is transferred; that where a prisoner is transferred from England to Ireland, notwithstanding any recommendation made under the law of the sentencing State, the nature of the sentence is imprisonment for life. Consequently, the High Court concluded that the appellant was in lawful custody; that it can be expected that the appellant will continue his rehabilitation and await the decision in due course of the Minister for Justice, Equality and Law Reform as to his release at a time and on terms advised by the Parole Board.

Appeal against the High Court Judgment
23. Against the judgment of the High Court the appellant has appealed. The specific grounds filed in his notice of appeal are that the learned High Court judge erred in law or in fact or on a mixed question of law or fact as follows:-

        (i) In refusing to order the appellant’s release.

        (ii) In failing to conclude that the detention of the appellant is unlawful.

        (iii) In failing to require the respondent to prove that, on the balance of probabilities, the appellant’s detention was unlawful.

        (iv) In failing to hold that the appellant was detained for the purposes of preventative detention contrary to the Constitution of Ireland.

        (v) In failing to act on the fact that the sentence under which the appellant is in custody is that of a Court of the United Kingdom and not of Ireland.

        (vi) In failing to conclude that the nature of the sentence under which the appellant is in custody was preventative in nature.

        (vii) In failing to conclude that the definition of the “nature” of the sentence did not incorporate its characterisation as punitive or preventative.

        (viii) In excluding from the definition of the “nature” of the sentence the question whether its underlying purpose was preventative or punitive.

        (ix) In concluding that the “nature” of a sentence is not changed by the motivation for its imposition, or the underlying rationale for its administration.

        (x) In admitting into evidence, and having regard to, an explanatory report on the Convention on the Transfer of Sentenced Persons 1983 in interpreting and applying the Transfer of Sentenced Persons Acts, 1995-1997.

        (xi) In failing to interpret and apply correctly the Transfer of Sentenced Persons Acts, 1995-1997.

        (xii) In failing to conclude that the sentence imposed in the United Kingdom and administered by Ireland contained a portion repugnant to the Constitution and laws of Ireland in that it was in whole or in part preventative in nature.

        (xiii) In failing to address the appellant’s primary argument under the Constitution of Ireland and in restricting his consideration to an issue of statutory interpretation.

        (xiv) In taking into account an irrelevance, namely the motivation of the Parole Board in Ireland, when making any recommendation to the Minister for Justice.

        (xv) In concluding that the nature, as opposed to the duration, of the sentence imposed on the appellant was one of life imprisonment.

24. In considering this appeal it is necessary also to consider the notice to vary of the respondent, which was grounded upon the claim that the High Court erred in law or in fact or on a mixed question of law and fact as follows:-
        (a) In incorrectly holding that the appellant was not subject to waiver/estoppel in respect of the claims that he sought to advance.

        (b) In failing to give sufficient weight to the fact that:

            (i) at all times it was made clear to the appellant that the management of his sentence would be dealt with based on the applicable regime in this jurisdiction;

            (ii) the idea of consent is central to the transfer scheme.

        (c) In failing to apply at all or properly the principles laid down by this court in Brennan v. Governor of Portlaoise [2008] 3 IR 364.

        (d) In failing to have regard to the respondent’s consistent position that the issues raised by the appellant were, on the facts of this case, matters more properly raised by way of judicial review and were not appropriate matters to raise by means of an Inquiry under Article 40.4.2.

Decision
25. I would uphold the order of the High Court and dismiss the appeal.

26. The appellant was convicted for murder and sentenced in England to a mandatory sentence, imprisonment for life. This is, in fact, the same sentence as a court would impose on a conviction for murder in this jurisdiction, life imprisonment. The court in England, and in Ireland, has no discretion, it is a mandatory sentence. The primary necessary finding is that the sentence imposed in England was a mandatory sentence and was imprisonment for life.

27. The relevant statutory law is to be found in s. 7 of the Act of 1995, as amended, and it states:-

        “(1) Where the Minister consents to a request for a transfer under section 6 of this Act, he or she shall apply to the High Court for the issue of a warrant authorising the bringing of the sentenced person concerned into the State from a place outside the State and the taking of the person to, and his or her detention in custody at, such place or places in the State as may be specified in the warrant.

        (2) Where an application is made to the High Court under subsection (1) of this section that court shall, if it is satisfied that the requirements specified in paragraphs (a), (b), (d), (e) and, where applicable, (c) of section 6 (3) of this Act have been fulfilled and that the Minister consents to the transfer concerned, issue a warrant authorising the bringing of the sentenced person into the State and the taking of the person to, and his or her detention in custody at, such place or places in the State as are specified in the warrant.

        (3) The High Court may specify, in a warrant under subsection (2) of this section, any place or places to which the court would have jurisdiction to commit the sentenced person concerned if the sentence in respect of which the person is being detained by the sentencing state was imposed by the court at the time of the issue of the warrant.

        (4) Subject to subsections (5) to (7) of this section, the effect of a warrant under this section shall be to authorise the continued enforcement by the State of the sentence concerned imposed by the sentencing state concerned in its legal nature and duration, with due regard to any remission of sentence accrued in the sentencing state, but such a warrant shall otherwise have the same force and effect as a warrant imposing a sentence following conviction by that court.

        (5)(a) On an application to the High Court under subsection (1) of this section, if the sentence concerned imposed by the sentencing state concerned is by its legal nature incompatible with the law of the State, the Court may adapt the legal nature of the sentence to that of a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed.

        (b) The Minister may, in his or her absolute discretion if he or she thinks it appropriate to do so, include in an application to the High Court under subsection (1) of this section an application that the Court adapt the duration of the sentence concerned imposed by the sentencing state concerned to that of a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed and, if the Minister does so and the sentence concerned imposed by the sentencing state concerned is by its duration incompatible with the law of the State, the Court may adapt the duration of that sentence as aforesaid.

        (6)(a) The legal nature of a sentence adapted under paragraph (a) of subsection (5) of this section shall, as far as practicable, correspond to the legal nature of the sentence concerned imposed by the sentencing state concerned and shall not, in any event, either –

              (i) aggravate it, or

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

        (b) The duration of a sentence adapted under paragraph (b) of subsection (5) of this section shall, as far as practicable, correspond to the duration of the sentence concerned imposed by the sentencing state concerned and shall not, in any event, either –
              (i) aggravate it, or

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

        (7) A person transferred into the State under this Act to serve a sentence or the balance of a sentence imposed on him or her by another sentencing state may not appeal in the State against the conviction in respect of which the sentence was so imposed.

        (8) Enforcement of the sentence specified in a warrant under this section shall cease where the State is notified by the sentencing state of any decision or measure, other than a decision or measure in respect of remission, as a result of which the sentence ceases to be enforceable in the sentencing state.

        (9) The Criminal Procedure Act, 1993, shall not apply to a person in respect of whom a warrant is issued under this section.

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

28. This scheme arises when a person has been sentenced in another jurisdiction and wishes to be transferred to a prison in this jurisdiction to serve his or her sentence. The requesting person or the sentencing State asks the Minister, who may then apply to the High Court for a warrant authorising the bringing of the person to this State for detention. The High Court, being satisfied that the requirements of the Act of 1995, as amended, are met and that the Minister consents, issues a warrant authorising the bringing of the requested person into the State and the taking of the person to, and his or her detention in, specified places for custody. Subject to s. 7(4) of the Act of 1995, as amended, the effect of this warrant is to authorise the continued enforcement by the State of the sentence concerned in its legal nature and duration, with due regard to any remission accrued in the sentencing State, but such a warrant shall otherwise have the same force and effect as a warrant imposing a sentence following conviction by that court. There are some exceptions, which do not apply in this case. Section 7(5) relates to situations where a sentence imposed by the sentencing State is by its legal nature incompatible with the law of the State. In such a situation 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. Section 7(7) is also not applicable as it prohibits an appeal in the State against the conviction in respect of which the sentence was imposed, and this does not arise. Nor does s. 7(6)(a) arise, as the sentence in this case was not adapted as being incompatible with the law of the State. It is of interest to note that s. 7(6)(b) provides that the duration of a sentence adapted shall, as far as practicable, correspond to the duration of the sentence imposed by the sentencing court and shall not, in any event, aggravate or exceed the maximum penalty prescribed by the law. Section 7(10) states clearly that a reference to the legal nature of a sentence does not include a reference to the duration of such a sentence.

29. The appellant was sentenced to life imprisonment in England. This was a mandatory sentence. There was no discretion exercised by the sentencing judges. The nature of the sentence is one of life imprisonment.

In fact this mandatory sentence is similar to the sentence a person convicted for murder would receive in the State, imprisonment for life. It is a mandatory sentence in Ireland also. There is no incompatibility between the sentence received in England and the penalty prescribed by the law of the State for a similar offence.

30. Section 7(10) clarifies that the reference to the legal nature of a sentence does not include a reference to the duration of such a sentence. This emphasises that it is necessary to look at the nature of a sentence and not merely to its duration. The nature of the sentence in issue is that of imprisonment for life. It is a life sentence. Even when a person is released from prison the sentence continues to exist. The sentence is not at an end. The life sentence does not cease during the life time of the sentenced person, even when they are released on licence. The sentence in issue is imprisonment for life – it is not a twelve year sentence. The fact that there was a twelve year tariff in England does not change the nature of the sentence.

31. Once the appellant was transferred to this jurisdiction, the management of the sentence was the responsibility of the Prison Service and the related services, such as the Parole Board.

32. The appellant is serving a valid sentence of imprisonment for life, in Ireland. The management of that sentence is now governed by Irish law. The management scheme adopted in England is no longer relevant. Irish authorities could not apply the English law. It is inappropriate for the Irish State to make reference to any minimum period in the United Kingdom within which the appellant would be denied parole review. In this case, no issue of inappropriate considerations on the part of the State that detrimentally affect the appellant arise because the appellant was considered twice by the Parole Board before the twelfth year of his sentence, i.e. the Parole Board did not manage the sentence according to English practice, but managed his sentence in accordance with Irish law. I am satisfied that this is the correct approach in law to the management of the appellant’s life sentence. Consequently, I would affirm the judgment and order of the High Court and dismiss the appeal of the appellant.

33. As to the notice to vary, the learned High Court judge stated:-

      “What I do not believe can ever happen is that a prisoner, by his consent incidental to the process whereby he is imprisoned, or by failing to take a point as to jurisdiction at the appropriate time, or by apparently acquiescing in the form of his detention, can render what is not in law a valid form of imprisonment into a lawful detention. If a prisoner cannot be detained by a court in accordance with law, then incidental aspects of consent, acquiescence, or delay cannot make lawful what is unlawful. Nor would I believe that the Court has any discretion akin to that exercised in judicial review proceedings to refuse to make an order in habeas corpus proceedings. There is only one issue in this kind of enquiry: is the prisoner lawfully detained or not? That admits of only one answer where there is no legal foundation to a sentence of imprisonment.”
I would affirm this approach by the learned High Court judge. The issue for the Court was whether the appellant was lawfully detained or not. The appellant could not be lawfully detained on the basis of his consent or acquiescence; it is a question of law. However, I also agree that the issues were more properly matters for a judicial review procedure. But, in the context of this appeal, in this Court, I would not refuse to determine the matter in the circumstances of the case. As to the main issue, I am satisfied that the management of the appellant’s sentence is based on the regime in this State and not the management procedures in England.

Conclusion
34. For the reasons given I would dismiss the appeal and affirm the order of the High Court.

JUDGMENT of Mr. Justice Fennelly delivered the 1st day of February 2012.

1. The Chief Justice, in her judgment, has provided a comprehensive account of the background facts and procedural history of the present case. I gratefully adopt it and will confine myself to a minimal recital of the facts relevant to the legal issue. Charleton J has also summarised the facts in some detail in his High Court judgment. He recites, in particular, the facts surrounding the horrific murder of which the appellant was convicted.

2. The core legal issue is whether the “legal nature” of the sentence of life imprisonment which was imposed on the appellant by the English court is confined to its duration or whether it extends to include the fact that, in English law, the trial judge imposed a minimum tariff of twelve years, the balance being justified solely by considerations of protection of the public, i.e. preventative considerations. The learned trial judge was of the view that the “motivation of the trial judge in setting a particular tariff in respect of personal deterrence and punishment does not change the nature of that sentence.”

3. The case for the appellant is that the legal nature of the sentence which he now is serving in Ireland no longer comprises any punitive or general deterrent aspect. It is submitted that the sentence as imposed in England and applied under English law, once the tariff element of twelve years has been served, is now being served exclusively for entirely preventative reasons. Consequently, it is argued that the legal nature of the sentence is incompatible with Irish law, which does not permit a person’s liberty to be curtailed purely to protect the public by means of his detention to prevent him from committing further crimes. In short, the purpose for which the sentence is now being served, it is said, is part of the nature of the sentence.

4. In order to resolve this issue, it is appropriate to recall briefly the way in which the sentence was imposed and structured. I will then refer to the evidence of English law, which has been provided to this Court, but was not available to the High Court. Finally, I will consider the Transfer of Sentenced Persons Act 1995 as amended by the Transfer of Sentenced Persons (Amendment) Act 1997 and the Convention those acts were designed to implement.

5. In English law, the trial judge was obliged by law to impose a sentence of life imprisonment upon the appellant’s conviction for murder. In addition, however, the judge was required to express his view as to the minimum period which the appellant should serve in respect of retribution and general deterrence. In performance of this obligation, the judge in a document described as “Trial Judge’s Report to the Home Secretary,” dated 22nd December 1999, completed paragraph 9 of what appears to be a pre-prepared form in which he made recommendations in respect of the appellant and his co-accused as follows:

“Trial judge’s view on tariff (the period of years to be served in custody necessary to meet the requirements of retribution and general deterrence) indicating that the factors which aggravate and mitigate the offences).

This was a vicious and brutal stabbing instigated by Evans. He had a long record of offences, mostly for dishonesty but some for violence. Cook was already unconscious and on the floor. Caffrey was of course the principal in Count 1 but not in Count 2. He was man of hitherto good character.

      For EVANS I would suggest fifteen years.

      For CAFFREY 12 years.”

6. The then Lord Chief Justice, Lord Bingham, on 10th January 2000, endorsed the trial judge’s recommendation by writing the words, “I also agree with his recommendation for Caffrey,” on the same report.

7. Although we do not appear to have the document which so decides, the Ministry of Justice, in a letter of 9th December 2008, informed the Midlands Prison that the tariff was “set by the Home Secretary at 12 years.” That letter of 2008 continued:

“This was the whole period he was required to serve for the purposes of punishment and deterrence and included time spent in custody on remand.”

8. It is common case that the twelve year tariff period ended on 24th March 2008.

9. Both the Chief Justice and Charleton J have dealt in detail with the procedures which were followed concerning the transfer of the appellant to serve the balance of his sentence in Ireland. I note only that, in a letter leading to the signature of the appellant on a document confirming the terms on which he was being transferred, Miss Anne O’Gorman, Principal Officer at the Department of Justice Equality and Law Reform informed the appellant:

“If you consent to a transfer to Ireland, you should expect, save for exceptional circumstances arising, to serve, at a minimum, the tariff imposed in the UK (excluding time deemed to be served in the UK).”

10. Charleton J was uncertain, on the state of the evidence before him, of the nature of the jurisdiction that would have been exercised by the English Parole Board, had the appellant not been transferred but had continued to serve his sentence in England. He said:

“I am not convinced that I have sufficient information which indicates what the motivation of the Parole Board in England and Wales would be in considering the release of this prisoner, were he now there instead of in Ireland. Would that motivation be merely the prevention of further offences and not his preparation, where appropriate, for re-entry into society?”

11. When the matter came before this Court, members of the Court expressed similar concerns concerning the precise nature of the English regime. The hearing of the appeal was adjourned to enable the Respondent to obtain further information. On 11th April 2011, Mr David Perry Q.C. swore an affidavit of English law, which has been provided to the Court. Mr Parry gives a very full account of developments England in sentencing of prisoners to life imprisonment extending back to the period prior to the abolition if the death penalty. That history includes an account of the policies of a number of Home Secretaries, of decisions of the English courts and of the European Court of Human Rights as well as of many legislative changes. Since the legal nature of the sentence is necessarily a matter of English law, Mr Parry’s affidavit is indispensable to an understanding of that central issue.

12. The policy of analysing a life sentence into different components, some concerned with retribution or punishment and deterrence on the one hand and some with prevention on the other has existed in one form or another in England at least since the early 1980’s. In 1983, the Home Secretary, Mr Leon Brittan, announced that:

“…new procedures will separate consideration of the requirements of retribution and deterrence from consideration of risk to the public, which always has been, and will continue to be the pre-eminent factor determining release.”

13. He emphasised that those reporting on life sentences should “concentrate on risk.” While the practice had developed of judges recommending minimum tariffs, successive Home Secretaries had proclaimed that they were not bound by the tariff. Although the House of Lords held in 1994 that mandatory life prisoners had the right to know the minimum period which the trial judge thought they should serve, the Lords did not accept that the Home Secretary was bound by the judicial advice (R v Secretary of State for the Home Department, ex parte Doody [1994] 1 A.C. 531; see also the decision of the Court of Human Rights in Wynne v United Kingdom 91994) 19 EHRR 333).

14. A major development occurred in November 2002, when the House of Lords in R (on the application of Anderson) v Secretary of State for the Home Department [2003] 1 A.C. 837 held that the Home Secretary’s powers to determine the tariff in the case of convicted murderers was incompatible with Article 6 of the European Convention on Human Rights. This judgment led in turn to the enactment by Parliament of the Criminal Justice Act, 2003. That Act transferred the power of fixing tariffs in mandatory life-sentence cases to the sentencing judge and introduced statutory guidelines to be taken into account when fixing the minimum terms to be served by such prisoners before becoming eligible for parole. In doing so, the sentencing judge is concerned with the seriousness of the offence and not the dangerousness of the offender.

15. The appellant had, of course, been sentenced prior to the coming into force in England of the Criminal Justice Act, 2003. His case is covered by transitional provisions in Schedule 22 to the Act. As explained by Mr Parry, he is in the category of prisoners who have had a tariff or minimum term set by the Home Secretary (on the recommendation of the sentencing judge). Under the provisions of the Schedule, he had the right to apply to the High Court to have a new tariff set. It appears that the High Court would not have been entitled to increase the tariff. We can assume, I believe, that he has never made such an application. At any rate, it was provided in the statute that any such application could not have postponed the final date of the tariff: 24th March 2008.

16. Mr Parry explains the criteria which would have been applied by a Parole Board in England following the end of the tariff period, had the appellant continued to serve his life sentence in England. Section 28(6)(b) of the Crime (Sentences) Act, 1997 requires a Parole Board to direct release where it “is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.” In the expert view of Mr Parry Q.C., this makes it clear that detention after the minimum term has expired can only be authorised on the basis of the risk of harm. This was explained by Leggatt L.J. in R v Parole Board ex parte Lodomez [1994] COD 525 as follows:

…the Board must be satisfied that it is not necessary that he should be kept in prison and not that there would be a substantial risk if he were released. In other words it must be shown that the risk is low enough to release him, not high enough to keep him in prison.”

17. Where the Parole Board directs release, the prisoner will be released on licence and the conditions of the licence remain in force until death.

18. It is clear that, as a matter of English law, if the appellant had remained to serve his sentence there, his continued detention would have related solely and exclusively to the question of danger to the public. On the other hand, his release could only have been on licence, which would have continued for his life.

19. I turn then to consider the crucial question of the meaning of “nature of the offence.” Section 7 of the Act of 1995 deals with the issue of nature of the offence as follows:

      “(4) Subject to subsections (5) to (7) of this section, the effect of a warrant under this section shall be to authorise the continued enforcement by the State of the sentence concerned imposed by the sentencing state concerned in its legal nature and duration, with due regard to any remission of sentence accrued in the sentencing state, but such a warrant shall otherwise have the same force and effect as a warrant imposing a sentence following conviction by that court.

      (5) On an application under subsection (1) of this section, if the sentence concerned imposed by the sentencing state concerned is by its legal nature or duration incompatible with the law of the State, the court may 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.

      (6) Where a sentence is adapted under subsection (5) it shall, as far as practicable, correspond in nature to the sentence imposed by the sentencing state and shall not, in any event, either—


        (a) aggravate it by its legal nature or duration, or

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

20. In short, Ireland, as the state where the appellant is serving the balance of the sentence, is, in the first instance, bound to continue to enforce the sentence both as regards its “legal nature” and its “duration.” However, if its legal nature is incompatible with the law of the State, the High Court “may 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.” It is common case that the High Court was not asked to and did not in fact make any order adapting the nature of the sentence.

21. The learned High Court judge referred to the definition of sentence contained in section 1(1) of the Act and expressed the view that it was “consistent with the classification of sentence as between their nature and duration.” He continued:

“It does not admit of a classification as between motivation, or appropriate sentencing principles, and the nature of the offence imposed.

I have concluded that the nature of the sentence imposed on Jonathon Caffrey is one of imprisonment for life. The motivation of the trial judge in setting a particular tariff in respect of personal deterrence and punishment does not change the nature of that sentence. In the event that an inadmissible motivation emerges from the sentencing remarks of a trial judge, this is a matter for correction by an appropriate appeal court. It does not change the nature of a sentence.”

22. The learned judge noted that “section 7(10) of the Act makes it clear that a reference to the legal nature of a sentence does not include a reference to the duration of such sentence.” He observed:” As to the nature of an offence, a sentence can generally differ in Ireland as between imprisonment, suspension, fine, forfeiture and community service.” Having referred in some detail to the provisions of the Convention, he thought that there was nothing in it to lead “to the conclusion that the nature of a sentence is changed by the motivation for imposing it, or the underlying rationale in administering it.” His view was that the sentence was one of life imprisonment and that “under Article 9.3., it is for the administering state to enforce it and “to take all appropriate decisions.”

23. The Respondent submits that the concept of “legal nature” relates to the actual inherent nature of the sentence, i.e. whether it is penal servitude, imprisonment or detention or something else. He relies on paragraph 50 of the Explanatory Report to the Convention, in particular, the statement that: “The administering State thus continues to enforce the sentence imposed in the sentencing State, but it does so in accordance with the requirements of its own penal system.”

24. In deciding this question, it is first necessary to determine the meaning of the term “nature of the sentence.” This is because both the Act and the Convention contemplate the possibility that a sentence imposed in the sentencing State may be incompatible with the law of the administering State. In those circumstances, the Convention envisages that the sentence may need to be adapted. Implicit in recognition of the possibility of an incompatibility and the need for adaptation is the proposition that a person should not be detained in serving an unlawful sentence. The legal system which determines possible incompatibility is necessarily that of the administering State, although it will need to look at the nature of the sentence which has been imposed, which has to be determined in accordance with the law of the sentencing state.

25. Section 1(1) of the Act defines the word “sentence” as meaning “any punishment or measure involving deprivation of liberty ordered by a court or tribunal for a limited or unlimited period of time on account of the commission of an offence…” The definition reflects exactly the definition in the Convention, save that it substitutes “the commission of an offence” for “a criminal offence.”

26. The introductory recitals to the Convention note that “foreigners who are deprived of their liberty as a result of the commission of a criminal offence should be given the opportunity to serve their sentences within their own society.” Plainly, the regime for transfer of sentenced persons applies only to persons serving sentences involving deprivation of liberty imposed by a court as punishment for the commission of a criminal offence. It does not apply to any other form of sentence. It does not apply to any form of pre-trial or extra-judicial detention.

27. Thus, one starts from the situation that the Act, applying the Convention, applies only to sentences of imprisonment imposed as punishment for crime.

28. From Article 2.2 of the Convention, it is clear that purpose of the transfer of a prisoner is “in order to serve the sentence imposed on him.”

29. The Convention contains two procedures whereby, to use a neutral word, a sentence imposed in the sentencing state may be modified. Article 10.2, which is reflected in section 7(4), (5) and (6) of the Act allows for the possibility of “adaptation” but only where the sentence is incompatible with the law of the administering State. Article 11, which has not been implemented in our law, allows for the conversion of a sentence. According to the Explanatory report of the Council of Europe on the Convention on the Transfer of Sentenced Persons, (ETS No. 112), under that procedure commonly called “exequatur” the sentence is converted and a new sentence substituted by the judicial or administrative authority of the administering State.

30. Article 10 is, of course, very closely reflected in the provisions of section 7 of the Act. Article 10.2 provides:

“If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, and 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.”

31. Neither the act nor the Convention provides any real guidance as to the meaning of "legal nature.” The suggestion in the Explanatory Report that it may relate to differences between penal servitude, imprisonment and detention is unhelpful. The only thing that is absolutely clear is that the sentences referred to involve "deprivation of liberty" imposed by way of punishment for crime.

32. The expression legal nature is one of the broad import. It is clear and is common case that it is distinct from the duration of the sentence. The fact that it is a life sentence relates to its duration, not to its nature. It seems clear, beyond any doubt or argument, that the sentence of life imprisonment which was imposed on the appellant is comprised of two distinct elements well-established and recognised in English law. There is a first period, 12 years in this case, called the tariff, which was imposed by way of retribution and general deterrence. That is the punitive element of the sentence. Following the expiry of the tariff period, a prisoner such as the appellant is, when detained in England, serving a part of the sentence which is justified exclusively on grounds of public protection, i.e. to prevent him from committing further crimes during the period of the detention.

33. That, it seems to me, relates to the “legal nature” of the sentence. With great respect to the learned trial judge, who was working without the benefit of the detailed account of English law provided by Mr David Pery Q.C., this is not a mere matter of the motivation of the sentencing judge. Any judge, including a judge in this jurisdiction, will take into account a range of considerations when imposing a sentence. A lengthy sentence may be imposed partly as punishment, partly as deterrent and may also take into account the continued danger the perpetrator presents to the public. It does not lead to a structured division of the sentence as is the case in English law. Where a sentencing judge specifies what is described as a minimum tariff, justified only by punitive considerations, the person sentenced will be considered as having fully served that aspect of his sentence and be eligible for parole, unless his further detention is justified for the protection of the public. That is, in my view, of the essence of the sentence.

34. There then remains the question whether such a sentence is compatible with Irish law. It is clear from a consistent line of authority that a sentence imposed for purely preventative reasons is never permissible. Murray C.J., in delivering the judgment of this Court in Lynch and Whelan v Minister for Justice, Equality and Law Reform and others [Supreme Court Unreported 14th May 2010] stated:

“Any convicted person on whom a sentence comprising a preventative element was imposed would be entitled to successfully appeal his sentence on that ground to the Court of Criminal Appeal or any such person who claimed that he was being detained in prison, by the executive or otherwise, as a form of preventative detention rather than punishment would be entitled to seek review of the lawfulness of that detention pursuant to Article 40 of the Constitution.”

On one interpretation, that judgment is authority for the proposition that a sentencing judge is not entitled to include, even as one among a number of elements in imposing sentence, consideration of the continuing danger to the public of the person being sentenced and the consequent need to protect the public by detaining him in prison. That is one possible interpretation of the judgment of Carney J in The People (Director of Public Prosecutions) v Bambrick [1996] 1 I.R. 265. That learned judge stated in the course of his decision on sentence, at page 270:

”If I were to protect the community and at the same time protect the accused from himself it would be necessary for me to sentence him to life imprisonment with the possibility of his release after a substantial punitive period had expired when, but only when, the Minister's expert advisors were fully satisfied that he no longer posed a danger or threat to any member of the community and women in particular. This is the approach which I would wish to take to the case.”

35. Following extensive review of a number of authorities, Carney J concluded that he was “precluded from approaching the case on the basis that over and above any considerations of punishment this dangerous accused should be preventively detained until in the opinion of the most qualified experts he is safe to be let back into the community.” He appears, in that passage, to have had in mind a sentence structurally divided into distinct components somewhat on the English model, where the prisoner would be detained after an initial punitive period, for the further purpose of protecting the public. It is unnecessary, for the purposes of the present appeal to decide whether an Irish court could include protection of the public as one of a number of unsegregated elements in a sentence, since it is plainly the case that, since March 2008, the appellant is detained solely to serve preventative considerations.

36. On the authority of Lynch and Whelan, his detention is unlawful and, as is clear from that case, he is entitled to apply to the Court pursuant to Article 40 of the Constitution for his release.

37. The Respondent submits, however, that an inquiry pursuant to Article 40.4.2 of the Constitution is not the appropriate remedy in the present case. The High Court warrant under which the appellant is detained and which the Respondent has produced to justify that detention is valid on its face. The appellant can only challenge it by means of proceedings to quash it. The Court was referred to: State (McDonagh) v Frawley [1978] 1 I.R. 131; McSorley v Governor of Mountjoy Prison [1997] 2 I.R. 258.

38. State (McDonagh) v Frawley concerned a prisoner, who had been duly convicted and sentenced. He complained in his Article 40 application that his detention was unlawful because he was not receiving proper medical treatment in prison. In that context, O’Higgins C.J. made the statement upon which the respondent places principal reliance at page 136 of the report:

“Where a person such as the prosecutor is detained for execution of sentence after conviction on indictment, he is prima facie detained in accordance with law and, as was held in the High Court by Maguire P. at p. 435 of the report of The State (Cannon) v. Kavanagh 4 , it would require "most exceptional circumstances for this Court to grant even a conditional order ofhabeas corpus to a prisoner so convicted.”

39. O’Higgins C.J. further explained that:

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

40. Thus, as the then Chief Justice continued at page 137, “applications under Article 40, s. 4, are not suitable for the judicial investigation of complaints as to conviction, sentence or conditions of detention which fall short of that requirement.

41. In McSorley v Governor of Mountjoy Prison, a prisoner duly convicted and sentenced, complained of the failure of a judge who proposed to impose a custodial sentence to advise an accused of his constitutional right to legal aid, which the High Court held to amount to such a denial of justice as to render the conviction void. O’Flaherty J, giving judgment for this Court considered that there was a major problem in that that neither the District Judge nor the Director of Public Prosecutions had been given an opportunity of making a case in reply, which constituted “a fundamental breach of the requirement of audi alteram partem .” He thought that “in the circumstances of a case such as this where the District Judge’s conduct of the proceedings is called into question the correct course for the learned High Court Judge to have followed would have been to give leave to apply for judicial review in such a manner that the District Judge and the Director of Public Prosecutions would have been given an opportunity to make their observations.” (See page 263). O’Flaherty J was at pains to distinguish the judgment of this Court in Sheehan v District Judge Reilly and others [1992] 2 I.R. 81.

42. In Sheehan v District Judge Reilly, there was an application for an inquiry under Article 40 into consecutive sentences of imprisonment imposed in the District Court, which appeared in the aggregate to exceed the statutory limits of that court’s sentencing powers. Finlay C.J., speaking for an unanimous Court expressed the view that the application made in that case should “have been regarded as an application for an inquiry as to the legality of the detention of the applicant pursuant to Article 40, s. 4, sub-s. 2 of the Constitution.” He continued, at page 89:

“Such an application in its urgency and importance must necessarily transcend any procedural form of application, for judicial review or otherwise. Applications which clearly, in fact, raise an issue as to the legality of the detention of a person must be treated as an application under Article 40, no matter how they are described. Upon the making of such an application to a judge of the High Court, that judge has got a jurisdiction and a discretion, in my view, even prior to reaching a conclusion that a sufficient doubt as to the legality of the detention of the applicant has been raised to warrant calling upon the jailor or detainer of the applicant to show cause, to make inquiries of a speedy and, if necessary, informal nature to try and ascertain the facts.”

43. The courts will regard it as an inappropriate use of the procedure pursuant to Article 40.4.2 of the Constitution to make complaints about the details of the procedure leading to imprisonment imposed in the State under a warrant apparently good on its face. In such cases, it may be necessary to institute proceedings to set aside the underlying convicction or sentence. The Article 40 procedure is designed to provide a remedy in cases of fundamental illegality in the detention.

44. In the present case, the warrant of the High Court under which the appellant is detained by the respondent discloses that he is held for the purpose of serving a sentence of life imprisonment imposed by an court in the United Kingdom. Under section 7(4) of the Act of 1995, the effect of the warrant is to “authorise the continued enforcement by the State of the sentence concerned imposed by the sentencing state concerned in its legal nature and duration…” The “legal nature” of the sentence depends on the law of the sentencing state. This Court has caused inquiry to be made into the “legal nature” of the sentence. The result of that inquiry is that the appellant’s continued detention is exclusively for a purpose which is not compatible with Irish law.

45. In those circumstances, the appellant is in my view not lawfully detained. An application pursuant to Article 40 is appropriate. I would allow the appeal and order his release.


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