Supreme Court allows appeal declaring 8-year sentence expiry, rejecting Minister's 16-year interpretation of English licence sentence.

THE SUPREME COURT

[Appeal No: 105/14]Denham C.J.

Murray J.

Hardiman J.

Clarke J.

MacMenamin, J.

Between/

Vincent Sweeney

Appellant/Applicant

and

Govenor of Loughlan House Open Centre, The Minister for Justice & Law Reform, Ireland and The Attorney General

Respondents

JUDGMENT of Murray J. delivered the 3rd day of July, 2014.

1. The appellant in this case was convicted of serious drug offences in the United Kingdom on the 7th December, 2006. He was

sentenced to what has been described as 16 years imprisonment by a court in England with the consequence, under English law, that

one half only of the 16 years would be served in custody, and one half served on release on licence in the community. In December,

2008 he consented to his transfer to this country in accordance with the Transfer of Sentenced Persons Act, 1995, as amended, and

had since then continued to serve the remainder of his prison sentence or period of “deprivation of liberty” in this country. The issue

in this case turns on what date must be treated as the expiry date of his custodial sentence within the meaning of the Act of 1995,

and the Convention on the Transfer of Sentenced Persons.

2. While serving his sentence of imprisonment in an English prison the appellant sought to serve the balance of his sentence in

Ireland, in accordance with the provisions of the Council of Europe Convention on the Transfer of Sentenced Persons (hereinafter

referred to as the “Convention”). The appellant was transferred from the United Kingdom to Ireland on the 16th December, 2008 for

the purpose of serving the balance of the English court’s sentence imposed on him. The authority to detain him in the country for that

purpose stems from a warrant to that effect issued by the High Court on the application of the Minister. The warrant was issued in

accordance with s.7(1) of the Transfer of Sentenced Persons Acts, 1995, as amended by an Act of the same title in 1997

(hereinafter “the Act”). Pursuant to s.7(4) of the Act that warrant has the same force and effect as a warrant imposing a sentence

following conviction by a court in Ireland insofar as it authorises the continued enforcement in Ireland of the sentence imposed in the

foreign State “with due regard to any remission of sentence accrued in the sentencing State”. (Section 7(4) of the Act). This refers

to remission already accrued prior to transfer and has no bearing on any question of remission which might accrue subsequent to the

prisoner’s transfer.

3. The appellant seeks, by way of judicial review, a declaration that the warrant issued by the High Court on the 22nd October, 2008

was ultra vires the provisions of the Act, and the principles contained in the Transfer Convention.

Submissions of the Appellant

4. In the light of the point of law on which this appeal must be determined, namely, what constitutes the sentence, or period of

“deprivation of liberty”, in this case within the meaning of s.1(1) of the Act, it is sufficient to summarise the appellant’s arguments

succinctly as follows: It was accepted that the enforcement and administration here of a sentence imposed in the sentencing state is

governed exclusively by Irish law, and a prisoner who is transferred under the Convention and in accordance with the terms of the

Act must accept that. In this case, the sentence imposed by the English court, although referred to as 16 years imprisonment, must

be understood as comprising of a sentence in two halves, namely, 8 years, in custody and half the sentence, the other 8 years, at

liberty in the community under strict licence. His entitlement to release at the end of the first period of 8 years was not dependent on

the discretion of any state authority. He was entitled to release at that point as a matter of law, and to remain at liberty in the

community for the remainder of the sentence period once he complied with the conditions of his release. Since sentence, within the

meaning of the Act, can only refer to a period of deprivation of liberty, the only imprisonment period which it fell to the Irish

authorities to “enforce” or “administer” was the period of 8 years. Once that period of imprisonment had been completed his

sentence, within the meaning of the Act, was completed and he was entitled to be released.

5. The appellant relied on evidence as to English law concerning the duration and legal nature of the sentence imposed upon him,

including the evidence contained in an affidavit filed on behalf of the Minister, as well as the affidavit as to English law filed on behalf

of the appellant himself. The evidence, it was contended, confirmed that the duration of the sentence, within the meaning of the Act,

was one of 8 years deprivation of liberty and no more, the remainder of the sentence to be served at liberty in the community under

strict conditions. Accordingly, the 29th March, 2014 must be treated as the date of expiry of his sentence, as defined by the Act.

Arguments of the Respondents

6. Counsel on behalf of the Minister pointed out that the administering state may choose between two methods of enforcing the

sentence imposed in the sentencing state; it may either continue the enforcement immediately or through a court or administrative

order, as provided for in Article 10 of the Convention, or convert the sentence through a judicial or administrative procedure, into a

decision which substitutes a sanction prescribed by its own law for the sanction imposed in the sentencing state, as provided for in

Article 11. As the Convention permits, Ireland has excluded conversion of sentences and operates only “continued enforcement” of

sentences imposed in other jurisdictions.

7. The Minister argued that the sentence imposed by the English court was one of 16 years imprisonment, and so described by the

sentencing court. The State was obliged under the terms of both the Transfer Convention and the Act to give effect to that

sentence in accordance with Irish law. This meant that his 16 years sentence of imprisonment was subject only to remission in

accordance with Irish law, namely, 25% of the sentence on the grounds of good behaviour. Accordingly, the sentence of the

appellant would, under Irish law applied in accordance with the Transfer Acts and the Convention, expire in December, 2022.

Assuming that he would be regarded by the Minister as being entitled to full remission on the grounds of good behaviour the envisaged

a date of release in this country would be the 12th day of December, 2016.

8. In this context counsel for the Minister pointed out that the Convention (and the Act) requires that “the administering state shall

be bound by the legal nature and duration of the sentence as determined by the sentencing state.” (Article 10 of the Convention). It

was acknowledged that both the Convention and the Act prohibit any aggravation of the nature or duration of the sentence imposed

in the sentencing state.

9. A key element in the Minister’s submissions was that while the duration and legal nature of the sentence was determined by the

sentencing court in accordance with the law of the sentencing state, the enforcement or administration of the sentence in this

country was governed exclusively by the law of the administering state, in this case, Ireland. The provisions of the Convention and of

the Act expressly exclude enforcement or administration of a sentence being carried out other than in accordance with the law of the

administering state, and it would be unworkable to require such a state to administer or enforce a sentence in accordance with the

law of the sentencing state given that the Convention has been ratified by a total of 64 different states all with their own sentencing

regimes.

10. In this case the English court had imposed on the appellant a sentence of 16 years imprisonment. The fact that he was entitled

to be released after 8 years imprisonment but subject to recall did not take away from the fact that it was a sentence of 16 years.

Apart from the fact that there is no provision in Irish law for the release or recall of the appellant in accordance with the terms of the

English sentencing regime should he be released after the 8 years period of custody, 16 years imprisonment now falls to be enforced

and administered in accordance with Irish law exclusively.

Issue

11. In short, the issue of law in this case in substance turns on whether the sentence imposed by the court in the United Kingdom

must be treated as a sentence, within the meaning of the Act and the Transfer Convention, as one of 8 years or one of 16 years.

12. As was submitted on behalf of the Minister, the “difficulties in this case go to the very substance of the sentence imposed by the

English Court.”

13. While ancillary issues arose in the High Court, for example, concerning the nature and import of information and documents

provided to the appellant on foot of which he agreed to be transferred, and whether he had, in fact, received all those documents, I

am of the view that in the final analysis, for reasons explained in this judgment, the outcome of this case depends entirely on an

objective determination as to the legal nature and effect of the sentence imposed by the court in England in accordance with the

English statutory regime.

14. Before addressing that issue it is appropriate at this point to refer, strictly so far as relevant, to the terms of the Transfer

Convention and the Act, as amended.

Convention on the Transfer of Sentenced Persons

15. Both Ireland and the United Kingdom are signatories to the Convention for the transfer of sentenced persons. This is a Convention

adopted under the aegis of the Council of Europe. It creates a framework for a person who is serving a term of imprisonment to be

transferred, on his or her consent, to another country of which he or she is a national for the purpose of serving an outstanding

balance of a sentence imposed by the sentencing state. The “sentencing state” means the state in which the sentence was imposed,

and the state to which the sentenced person may be, or is, transferred in order to serve his sentence is the “administering state”.

(Article 1 of the Convention)

16. Of particular importance is the definition of “sentence” in Article 1 which is defined as meaning:

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

on account of a criminal offence;”.

Thus, a person is transferred for the purpose of serving the balance of a period of “deprivation of liberty” as ordered by a court in the

sentencing state. Adherence to the Convention is not confined to states which are members of the Council of Europe. There are

currently some 64 states which have ratified or acceded to the Convention. Sentencing regimes and the structure of sentences will

invariably differ, sometimes radically, among the states that have ratified the Convention, and the Convention makes provision for, in

addition to a simple continued enforcement of the sentence originally imposed, the conversion of a sentence into one which can be

more appropriately given effect to in the administering state, or the adaptation of sentence to a punishment or measure compatible

with the law of the administering state. The particular provisions governing this are referred to below, but suffice to say, for present

purposes, that the appellant was transferred to this country on the basis of continuing to serve the balance of the sentence imposed

upon him in the United Kingdom without conversion or adaptation.

17. The common thread, however, for all transfers irrespective of the sentencing regime is that the person is serving a sentence

within the meaning of the Convention, namely, a period of “deprivation of liberty ordered by a court”.

18. Article 3 provides for the general conditions transfer, which in general terms requires that the person is a national of the

administering state, that he or she, and both the sentencing and administering states, consent or agree to the transfer. Nothing turns

on the conditions for transfer.

19. The essential obligations of the administering state, in this case Ireland, are set out in Article 9(1) of the Convention. This

obligates the administering state to “continue the enforcement of the sentence … under the conditions set out in Article 10”.

Alternatively, the administering state may “convert the sentence, through a judicial or administrative procedure, into a decision of

that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the

administering State for the same offence, under the conditions set out in Article 11.” No question of conversion of the sentence

arises in this case (Ireland not having made any provision in its law for such an option).

20. Article 9.3 provides that the enforcement of the sentence shall be governed by the law of the administering state and that state

alone shall be competent to take all appropriate decisions for that purpose. (This, as the State have argued in this case, includes the

application of Irish law governing any remission of sentence).

21. In this case we are concerned with the continued enforcement of the sentence imposed in the United Kingdom on the appellant.

As counsel for the State have pointed out the effect of Article 9.1 is that the State must fully enforce the sentence as imposed on

the appellant in the sentencing state, subject to its enforcement being governed by Irish law. However, an important condition

concerning continued enforcement of a sentence is contained in Article 10.1 which provides:

“In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the

sentence as determined by the sentencing State.”

Much turns in this case on the legal nature and duration of the sentence as actually imposed on the appellant.

22. Although it does not directly arise in this case it is important to note that Article 10.2 provides as follows:

“If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so

requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure

prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible,

correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the

sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.”

23. It is common case that the State has exercised its right not to make provision for the conversion of a sentence imposed in the

sentencing state by judicial or administrative procedures in this country.

It is also common case that if the Minister had considered that the sentence imposed, in this instance by the English sentencing

court, was in a form incompatible with our law he could have applied to the High Court to adapt the sanction or punishment, as

envisaged by Article 10.2 of the Convention above and, indeed, as provided for in s.7(5) of the Act of 1995. The Minister did not

consider that there was or is any incompatibility between the sentence imposed by the English court in this instance and the law of

the State. Accordingly, the question of adaptation of the sentence does not either arise.

24. Prior to the appellant’s transfer to this country, the British authorities, before consenting to the application for transfer, were

informed by the Irish authorities, in accordance with Article 6 of the Convention, that in the appellant’s case the “continued

enforcement” procedure would be followed in accordance with Article 10.

Transfer of Sentenced Persons Act, 1995 and 1997

25. The Convention is given effect to in domestic law by the Transfer of Sentenced Persons Act, 1995, as amended by the Transfer

of Sentenced Persons Act, 1997. As Acts implementing an international convention they fall to be interpreted in the light of the

provisions of the Convention (Bourke v. Attorney General & Anor [1972] I.R. 36; Crilly v. Farrington & Ors. [2002] 1 ILRM 161).

26. Section 1(1) of the Act of 1995 defines the term “sentence” in the same manner as the Convention, namely, 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;” (emphasis added). A “sentenced person” means a person on whom such a sentence has

been imposed.

27. Section 6 of the Act contains the principal provisions regulating the implementation of the Convention, namely, the transfer of a

sentenced person to this country to continue serving a sentence imposed in the sentencing state, once the appropriate criteria have

been fulfilled. This section also makes provision for ensuring that all reasonable steps have been taken to provide information to the

sentenced person concerning the import of a transfer to Ireland as required by the Convention.

28. Section 7(1) makes provision for the Minister, who has consented to a request for a transfer, to 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.

This is what was done in this case. A warrant was duly issued by the High Court in respect of the appellant in this case. Sub-section

4 of Section 7 provides that 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.”

29. It has been emphasised on the part of the Minister that indeed what occurred here in respect of the appellant is the continued

enforcement by the State of the sentence imposed by the sentencing state.

Information

30. An issue arose in the High Court concerning the information which was provided to the appellant by the Irish authorities prior to

his transfer and, indeed, prior to him consenting to his transfer. It seems clear that the Irish authorities made available to the

appellant all the information envisaged by both the Convention and the Act of 1995, but there was a dispute as to whether that

information was, in fact, given to him or fully brought to his attention by the English authorities. The information, of course, included

the earliest release date as envisaged by the Irish authorities on the basis of their view of his sentence as being one of 16 years

imprisonment that would be subject only to remission in accordance with Irish law and practice. It was pointed out on behalf of the

Minister that the appellant knew that his sentence would be treated by the Irish authorities as a 16 year term of imprisonment and

while he would get credit for any reduction in that sentence to which he had become entitled in England before his return any

subsequent remission of the balance of the 16 year term of imprisonment could be only that arising under Irish law and not that

arising under English law. That was the view of the Irish authorities and it may well have been communicated and understood by the

appellant, including their view on his release date, but the mere communication of that information, or non-communication as the case

may be, cannot affect and does not effect the fundamental issue in this case. That, of course, is the issue as to whether the Irish

authorities view of the sentence is objectively in law a correct one, or whether the sentence imposed was, within the meaning of the

Convention and the Act, one of 8 years deprivation of liberty only. Accordingly, insofar as it arose at all, the issue of receiving

information and being adequately informed does not govern the issue to be determined in this particular case.

Decision

31. There are certain essential elements in this case which are common to both the appellant and the respondent. These include the

following:

(a) The legal nature and duration of the sentence imposed by the English court in this case is to be determined by

reference to English law;

(b) The appellant’s transfer to prison in this country was for the purpose of the “continued enforcement” of his English

sentence to which the State is required to give full effect;

(c) The “enforcement” or “administration” of the sentence is, however, governed by the law of the administering State so

that, for example, any remission of the sentence on the grounds of good behaviour is governed by Irish law and not

English law;

(d) Although the parties differed crucially on the length of the sentence of actual imprisonment that was imposed in this

case, it was also common case that the sentence enforced could not be longer than the sentence imposed in the

sentencing state.

32. In short, as was put on behalf of the Minister in counsel’s submissions, the “difficulties in this case go to the very substance of

the sentence imposed by the English court”.

Decision of the Sentencing Court

33. The order for imprisonment from the Crown Court in England and Wales stated on the 7th December, 2006 “the court ordered that

the defendant be sentenced to 16 years imprisonment”. It was pointed out on behalf of the appellant, without contradiction, that a

release notification slip provided to the appellant explained that the sentence expiry date is the 29th March, 2022, the conditional

release date is 29th March, 2014 with an eligibility for release being the 15th December, 2013. The court also directed that custody

on remand prior to sentencing was to be taken into account.

34. It is now necessary to turn to English law for a full understanding of the nature of the sentence which was imposed on the

appellant. For this purpose it is necessary to have regard to the evidence concerning English law which was before the High Court,

and in particular the evidence given, on affidavit, by Mr. David Perry, Q.C. His affidavit was filed on behalf of the Minister and was

relied on by the appellant as well as the affidavit sworn by the appellant’s own English lawyer, Mr. Kenneth Carr. It seems to me

sufficient to refer to the evidence as to English law given by the Queen’s Counsel relied upon by the Minister.

35. At paragraph 8 of his affidavit he addresses the nature of the sentence imposed on the appellant. He makes the following

statements:

“a. The nature of the sentence is governed by the Criminal Justice Act, 2003.

b. Had Mr. Sweeney remained in custody in England, he would have been required to serve half his sentence in

custody. The remaining period would have been spent on licence in the community.

c. It is the duty of the Secretary of State to release a prisoner at half-way point in his sentence. A failure or

refusal to do so would be unlawful.”

36. It seems to me that perhaps the most crucial statement concerning the law governing the nature of the appellant’s sentence is

that the Secretary of State was bound to release the appellant at a half-way point in his sentence and that a failure or refusal to do

so would be unlawful.

37. Logically, counsel goes on to say at the next paragraph, paragraph 9 of his affidavit, that the appellant would have served 8

years in custody. “He would have been released on licence (subject to conditions) on 29 March, 2014.” That is after a period of 8

years allowance having been made for his pre-sentence period in custody. The fact that the whole sentencing package, so to speak,

has been referred to as a sentence of 16 years imprisonment cannot detract from, or prevent, an objective assessment of its duration

and legal nature. As Lord Bingham pointed out in the citation referred to below, it is the legal implications of any sentence which

counts.

38. Another relevant feature of counsel’s evidence is that English law makes no provision for any remission for this kind of sentence.

39. Moreover, at paragraph 28 of his affidavit he says that the effect of the relevant provisions of the Act of 2003, referred to

above, “is that all prisoners sentenced to a determinate term of 12 months or more are entitled to automatic release on licence at

half-way point of their sentence.”

40. Earlier in his affidavit, at paragraph 21, he drew a parallel between the legal effect of the current English sentencing regime,

automatic release after one half of the custodial sentence has been served, with an earlier regime of automatic release after two-

thirds of a sentence had been served. He referred to the case of R (Smith) v. Parole Board [2005] 1 WLR 3550 where Lord Bingham

addressed the nature of a custodial sentence which gave rise to an automatic right to release before the full sentence term was

completed. He cites from the decision of Lord Bingham (at paragraph 24) in the following terms:

“… the sentence passed is not (as it has not within living memory been) a simple statement of the period the defendant

must spend in prison. The sentence is in reality a composite package, the legal implications of which are in large

measure governed by the sentence passed.”

Counsel in his affidavit noted that Lord Bingham went on to note (at paragraph 30 of the judgment) that long term prisoners who had

reached the two-thirds point of their sentence (their “non-parole date”) had a statutory right to be released from custody. Lord

Bingham, he pointed out, relied for this proposition on an earlier judgment of the House of Lords in the case of R v Governor of

Brockhill Prison, Ex p Evans:

“It is noteworthy that a short-term prisoner who has served half his sentence and a long-term prisoner who has

reached his non-parole date have a statutory right to be free: a conditional right, but nonetheless a right, breach of

which gives an enforceable right to redress”.

41. Counsel explained that these same considerations apply to the statutory regime under which the appellant was sentenced. In any

event, s.244 of the English Act of 2003 is quite explicit:

“(1) As soon as a fixed-term prisoner, other than a prisoner to whom section 247 applies, has served the requisite

custodial period, it is the duty of the Secretary of State to release him on licence under this section.”

42. It is true that once the prisoner is released (automatically) on licence he is released under conditions which are stricter than

those which would have been imposed on a prisoner released for remission or on parole in England and Wales. I do not think it is

necessary to recite the nature of the conditions which are imposed. The fact that the prisoner is released under strict conditions

does not take away from the objective fact that as and from a half-way point in his or her sentence the prisoner must be released by

operation of law and then is entitled to serve the remainder of the term of “imprisonment” at liberty in the community under the

licence conditions. It was, of course, pointed out by counsel on behalf of the Minister that if the appellant is to be released on the

basis that his sentence was one of 8 years duration only, his release could not be made the subject of the licensed conditions

envisaged by the English legal sentencing regime since there is no provision in Irish law for such a form of licensed release. Effect

therefore could not be given to that portion of the English sentence. That may very well be the consequence but it is not one which

could be a basis, in law, for requiring the appellant to serve a longer and more onerous custodial sentence in this country. It is a

consequence of the Minister’s misconception of the duration of the sentence, within the meaning of the Convention and the Act,

imposed by the English court.

43. In the light of the foregoing it seems to me quite self-evident that, whatever descriptive terms are applied to the sentence

imposed on the appellant by the English court, objectively it consisted of one period of imprisonment or ‘deprivation of liberty’, to use

the language used in the Act in defining a “sentence”, and a second period of liberty under licence which occurred by operation of law

and not by virtue of any remission, discretionary or otherwise, granted by the English authorities. In my view, the interpretation of

the sentence as imposed in the sentencing state adopted by the Minister is misconceived. In the light of the foregoing, I can see no

legal basis on which the appellant could be regarded, as contended by the Minister, as being required to serve in this country a term

of imprisonment, or deprivation of liberty, of 16 years, subject only to the rules on the enforcement of a 16 year term of imprisonment

applying in this country, namely, the grant of discretionary remission for good behaviour by the Minister. That would require him to

serve a sentence longer than that imposed in the sentencing state. For the reasons stated the legal nature and duration of the

sentence, namely, deprivation of liberty, is 8 years of actual imprisonment.

44. One might, at the most, draw a parallel between a suspended sentence imposed on a convicted person, however strict any

conditions for the suspension might be. A person given a suspended sentence in another State could not, obviously, avail of the

Transfer of Sentenced Persons because he is not serving a sentence “involving deprivation of liberty ordered by a court” (s.1(1) of

the Act) even though he or she might potentially have to serve such a sentence if the terms on which it was suspended were

breached.

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

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

if he was in breach of the terms of his licensed release. Such a sentence cannot, in my view, be characterised as a sentence to a

period of loss of liberty of 16 rather than 8 years within the meaning of either Article 1 of the Convention, or s.1 of the Act of 1995.

46. The Court, having heard the parties in this case at a hearing of the appeal on the 28th May, 2014, decided that the appellant’s

appeal should be allowed, and that reasons for the decision would be given at a later date.

47. For the above reasons I concluded that the appeal of the appellant should be allowed and that the Court should make the

necessary declaration that he was not entitled to be detained on foot of the High Court order in question as and from the expiry of

the first half of his sentence, namely, the 8 year period.