Justice O’Donnell & Justice Clarke
Problems have already been encountered in implementing the regime by which sentenced prisoners can be transferred from England and Wales to Ireland. That regime stems from the Council of Europe Convention on the Transfer of Sentenced Persons (“the Convention”) and its Irish implementing measure, the Transfer of Sentenced Persons Acts 1995-1997 (“the 1995 Act”). The particular problems giving rise to these cases stem from a significant change in the nature of sentences imposed in England and Wales which has occurred as a result of recent legislative measures adopted in that jurisdiction. In particular, the law of England and Wales now provides that, as a matter of law rather than as a result of the terms of a court order in a particular case, all sentences of imprisonment over a minimum threshold are to be served partly by actual imprisonment and partly in the community under licence and subject to recall. It is the implementation of such a sentence within the Irish penal regime which has created difficulties.
This Court has already given one judgment on the issue, being Sweeney v The Governor of Loughan House Open Centre  I.E.S.C. 42 (“Sweeney”). It will be necessary to return to Sweeney in due course. These cases, which clearly were commenced as a result of that decision, depend on an analysis of what was decided in that case.
Each of the applicants/respondents in these three connected appeals (“the prisoners”) was sentenced to lengthy periods of imprisonment in England. The prisoners had travelled to Slovakia in 2001 for the purposes of purchasing very substantial quantities of arms and explosives for an organisation styling itself the Irish Republican Army or Real IRA. They met on five occasions with individuals whom they believed represented the then Iraqi government. They wrote out a list which mentioned 5000 kgs of plastic explosive, 2000 detonators, 200 rocket propelled grenades, 500 handguns and also referred to one and a half million dollars to be paid over the period of half a year. To put this into context, it was explained at their trial that about 1,5 kgs of plastic explosive is used in a car bomb. In fact, the parties with whom the applicants were dealing were undercover British agents. The prisoners were arrested in Slovakia and extradited to the United Kingdom. There they were tried and after a lengthy voir dire pleaded guilty to counts including conspiracy to cause explosions and entering into arrangements to make money and other property available for the purposes of terrorism. On the 7th of May, 2002, they were sentenced by the trial judge to 30 years imprisonment. On appeal, on the 15th of July, 2005, the Court of Appeal Criminal Division substituted a sentence of 28 years imprisonment. As of that point their convictions became final and they became eligible for transfer to serve their sentences in Ireland under the provisions of the 1995 Act which as noted earlier implements in Irish law the provisions of the Convention.
Solicitors acting on behalf of the prisoners corresponded with the Department of Justice, Equality and Law Reform (as it then was) pressing for their case to be dealt with urgently and complaining of what were characterised as “unacceptable delays”. On 24th March, 2006, Mr. Brendan Eiffe, an assistant principal officer in that department, wrote a detailed letter to each of the prisoners enclosing the relevant legislation and an explanatory leaflet. In particular, the provisions in relation to remission were explained. There, it was stated that the standard rate of remission in Ireland was one quarter of sentences as opposed to one third as applied in the UK. The prisoners’ expected date of release under the applicable English law was the 29th of April, 2020, and the letter continued: “[i]f you consent to a transfer to Ireland, it is likely, given that you will be eligible to earn remission of up to one quarter of the balance of sentence (as opposed to a rate of one third in the UK), that your final release date will extend beyond 29 April, 2020.” The letter then went on to give an estimate of a sentence based on a hypothetical transfer date of 1st July, 2006, and which assumed remission of one quarter and set out in bold print an estimated release date of 20th January, 2022.
The prisoners applied to be transferred to Ireland under the terms, so far as this jurisdiction is concerned, of the 1995 Act. Warrants were issued in the High Court providing an apparently lawful basis for the detention of each of the prisoners in Ireland for the purposes of serving the balance of the sentences imposed in England. However, the difficulty identified by this Court in Sweeney also applies, but in a more complex way, to the position of each of the prisoners. While it will be necessary to refer to the warrants under which the prisoners were detained in this jurisdiction in more detail, those warrants (reflecting the terms of the corresponding English warrants) simply referred to the sentences of 28 years imprisonment ultimately imposed in the English courts without in any way reflecting the regime for sentencing prisoners in England and Wales to which reference has already been made. The prisoners were transferred pursuant to those warrants and commenced serving their sentences in Ireland. However, when the decision of this Court in Sweeney emerged identifying difficulties in the regime for implementing sentences imposed in England and Wales, these proceedings under Article 40 of the Constitution were commenced seeking an inquiry into the legality of the detention of the prisoners. As already noted, the issue in their cases is, at least on one view, more complex than that with which the courts were faced in Sweeney. It was clear on the facts of Sweeney that the applicant in that case had, by the time the matter came before the courts, already served a period of actual imprisonment which exceeded the period of such actual imprisonment which would have been required to be served in England under the relevant legislation in that jurisdiction. In the light of the view taken by this Court in Sweeney as to the proper application of the 1995 Act, it was clear that the applicant in Sweeney was no longer in lawful custody and this Court required his release. It will be necessary to deal briefly with the form of order made by this Court in Sweeney in due course.
However, the situation pertaining to the prisoners in all the circumstances of this case is somewhat different. First, unlike the position which pertained in Sweeney, the relevant English legislation which was in place at the time when each of the prisoners was sentenced provided that a period of one third of the total sentence should be served in the community under licence and subject to recall. That contrasts with the equivalent period of one half of the sentence which was relevant in Sweeney as a result of subsequent amending legislation in England and Wales. More importantly, the period which would have been served by each of the prisoners in actual custody in England (until April, 2020) has not yet expired. Indeed, even if the standard remission of sentence which would ordinarily be available in this jurisdiction were applied to that period of actual custody, it would still be the case that questions might arise as to whether the proper application of Sweeney to the facts of this case would require the release of the prisoners.
In the High Court, in two judgments, O’Farrell v Governor of Portlaoise Prison  I.E.H.C. 416 and O’Farrell v Governor of Portlaoise Prison (No. 2)  I.E.H.C. 420, Hogan J. ultimately concluded, nonetheless, that the prisoners should be released. The respondent/appellant (“the Governor”) has appealed to this Court against that finding. In order to fully understand the issues which were before this Court, it is necessary to set out both the facts, which are not in themselves controversial, and the reasoning of the trial judge.
2. The Facts
The background to these proceedings is set out in the judgments of the High Court (Hogan J.) and the uncontroverted evidence which was before that Court. On 2nd May, 2002, the prisoners pleaded guilty to various serious offences before Woolwich Crown Court involving counts of terrorism type offences and conspiracy to cause explosions. They were each sentenced to 30 years imprisonment. The sentences were back-dated to 5th July, 2001, being the date on which the prisoners were originally taken into custody in Slovakia prior to their extradition to the U.K. That sentence was quashed by the Court of Appeal of England and Wales (Criminal Division) and was replaced with one of 28 years imprisonment on 15th July, 2005. As Hogan J. noted, “[t]here is no doubt but that the sentence as so varied constituted a final order of the courts of England and Wales.”
On 22nd August, 2005, the prisoners applied under the 1995 Act to be transferred to this jurisdiction to serve the balance of their sentences. In relation to the consent of the prisoners to their transfer, which is a requirement under the 1995 Act, Hogan J. noted in his first judgment that, as discussed earlier in this judgment, an officer of the Minister for Justice, Equality and Law Reform (now known as the Minister for Justice and Equality) (“the Minister”) wrote to the prisoners prior to their transfer, in order to draw their attention to the fact that the standard rate of remission in Ireland was one quarter, as opposed to what was said to be a one third remission applicable in England and Wales. That correspondence notes that, under the Irish rules, “[t]here is no supervision in the community of persons released on reaching remission.” On that basis, therefore, it was estimated that the final release date was 20th January, 2022, rather than 29th April, 2020, which was the Minister’s understanding of the likely release date if the prisoners were to remain in prison in England. Hogan J. noted, at para. 7 of the first judgment, that it was on this basis, therefore, that the prisoners gave their consent to the transfer on 27th June, 2006.
On 28th July, 2006, the High Court (Peart J.) acceded to the applications for transfer and ordered that the prisoners be brought into this jurisdiction to serve the balance of their sentences in Portlaoise prison. Warrants were issued under s.7 of the 1995 Act for this purpose. The content of the warrant relating to Fintan Paul O’Farrell issued under s.7 of the 1995 Act is set out in full in the judgment of Hogan J. The warrants in the other cases are, for all relevant purposes, identical. At this point, it is worth pointing out that there is no material difference between the issues which arise as and between the cases brought respectively by each of the three prisoners.
In material part, the warrants provide as follows. Under the heading “Crime”, three offences are detailed:
conspiracy to cause explosions,
inviting another to provide money or property for the purpose of terrorism, and
entering into an arrangement to make money and property available for terrorism.
Under the heading “Sentences in the Sentencing State”, the warrants provide “(a) Twenty Eight Years Imprisonment for Conspiracy to Cause Explosions at (i) above” and “(b) Twelve years imprisonment, concurrent to the said Twenty Eight Years Imprisonment, for the offences at (ii) and (iii) above.” The date of commencement of the sentences provided in the warrants is the 7th May, 2002, which was the date of sentence in Woolwich Crown Court, and is incorrect since that Court backdated the sentences to the date on which the prisoners were taken into custody. There is little dispute however that, at least in this respect, the warrants can be varied and thereby corrected.
3. The High Court Judgment
The prisoners made applications to the High Court under Article 40.4.2 of the Constitution seeking orders for release. On foot of these applications, the High Court had to consider whether the warrants issued for the transfer of the prisoners from prison in England to a prison in this jurisdiction were defective, and if so, what the consequences of such defect(s) would be. The prisoners also raised arguments concerning the constitutionality of s.7 of the 1995 Act itself, namely, whether it is constitutionally permissible to make an order on an ex parte basis for the detention of a prisoner in accordance with that provision. However, as noted by Hogan J. in his first judgment at para. 9, although “the language of the Constitution itself expressly envisages that the constitutionality of a law may be determined in Article 40 proceedings, it is has (sic) often been found more convenient that such issues would be determined in plenary proceedings following an exchange of pleadings.” Therefore, it was agreed between the parties that this course would be adopted. Separate plenary proceedings were commenced by each of the prisoners in respect of the constitutional issue (Mr. O’Farrell’s proceedings bearing record no. 2014 No. 15582P, Mr. McDonald’s proceedings bearing record no. 2014/5580P and Mr. Rafferty’s proceedings bearing record no. 2014/5581 P) in which the Governor, the Minister, Ireland and the Attorney General were named as defendants. Meanwhile, it was agreed that Hogan J. would give judgment on all issues relating to the warrants of detention made on foot of the order of Peart J. of 28th July, 2006. The constitutional issues were adjourned pending the resolution of these first issues.
The hearing of the issues relating to the warrants by Hogan J. took place in two stages. At the first stage, Hogan J. considered matters relating to the warrants of detention made on the 28th July, 2006, under s.7 of the 1995 Act, including the duration of the sentences set out therein, the content and integrity of the warrants, and the fact that the sentences were purported to have been continued in this jurisdiction in the manner envisaged by Article 9(1)(a) of the Convention (and reflected in s.7(4) of the 1995 Act) rather than “adapted” to a sentence prescribed by the law of the administering State (as provided for by Article 9(1)(b) of the Convention (and reflected in s.7(5) of the 1995 Act)) and then continued. These provisions will be considered in greater detail in due course as this distinction is at the heart of the second judgment of the High Court. It is worth noting in passing that the Convention also permitted contracting States to adopt a process known in civil law systems as “exequatur” or “conversion” in which the sentence becomes converted into a sentence imposed by the receiving State as if the conviction had occurred there. This provision is not relevant to the present proceedings because Ireland, as it was entitled to, did not opt to make provision for this method of enforcement.
At this first stage of the hearing, the trial judge concluded that the sentence imposed by Woolwich Crown Court, as varied by the Court of Appeal for England and Wales, was “in truth a sentence of approximately 18 years and 8 months” whereas the sentence set out in the s.7 warrant was one of 28 years. The trial judge held that this was the effect of the judgment of this Court in Sweeney, where it had been held that the true legal nature and effect of a sentence of 16 years in England was eight years imprisonment and eight years supervision in the community. There was no equivalent to supervision in the community in Irish law. Accordingly, Mr. Sweeney had already served eight years imprisonment and was entitled to be released. The consequence of the decision in Sweeney when applied to these cases meant that the “legal nature and effect” of a sentence pronounced as 28 years was a sentence of 18 years and eight months’ imprisonment and nine years and four months’ supervision in the community for which there was no equivalent in Irish law. Therefore, the trial judge held that, inasmuch as the s.7 warrant issued by the High Court in July, 2006, records that sentence as one of 28 years, it is, to that extent, defective.
The trial judge also held that, because the sentencing system in England and Wales is so appreciably different from that which obtains in Ireland, sentences of this kind should more properly be adapted under s.7(5) of the 1995 Act which permits the Minister on an application for issuance of a warrant under s.7(1) to seek adaptation of the sentence to one prescribed by the law of the State “if the sentence concerned imposed by the sentencing State concerned is by its legal nature or duration incompatible with the law of the State”. Hogan J. expressed the view that the British system of automatic release by way of legal entitlement after service of two thirds (or, in the case of a conviction after April 2005, one half) of the sentence goes to the “legal nature” of the sentence imposed by the judicial branch of the sentencing State, whereas the Irish system of remission (which is normally one quarter) is fundamentally a matter going to the question of the administration of the sentence by the executive of the receiving State. Further, in the course of that first judgment, the trial judge inferred the origin of this principle from the judgment of this Court in Sweeney, in which it was pointed out that the adaptation of sentences was a possibility, although rightly pointing out that this Court did not have to consider that matter in that particular case because the prisoner concerned was entitled to release in any event as his sentence had already expired. Nevertheless, the trial judge expressed the view that the incompatibility between this particular form of English sentence and Irish law necessitated adaptation of such sentences at the time of the transfer of the prisoner to this State. This particular aspect of the trial judge’s findings was considered in more detail during the second stage of the hearing.
The trial judge also held that a court can direct the release of an applicant in Article 40.4.2 proceedings where the warrant is so defective that no proper basis for the current detention has been made out by the detainer, whereas defects which were “so peripheral or technical that they may safely be classified as harmless errors, not affecting the underlying validity of the detention warrant” lay, as it were, at the other end of the spectrum where they may safely be classified as “harmless errors” thus not justifying release. In this matter, the trial judge found the defects in the warrant to fall into an intermediate category because they were too serious to be dismissed outright, but, the warrant being “otherwise replete with details specifying the offences in question”, the trial judge found that the defects were “not (yet) so pervasive as to destroy the validity of [the] warrant”. In those circumstances, the trial judge followed the example of the approach taken by Baker J. in Miller v Governor of Midlands Prison  I.E.H.C. 176 and adjourned the Article 40.4.2 application to allow the Minister to make an application, should she consider it appropriate, to the High Court under s. 9(1)(b) of the 1995 Act to vary the existing s.7 order “so that the English sentence can be properly adapted into our law and, especially, that the duration and commencement of the sentence be properly recorded.” The trial judge considered that this was the appropriate course of action having regard to the nature of the errors, the interests of the sentencing State and the otherwise very full description of the offences contained in the warrants. However, the trial judge, appropriately, expressed no view as to whether the Court could or should exercise the power of variation or adaption so as to correct the particular errors in question.
At the second stage of the hearing, following an application brought by separate motions on notice to the prisoners, the Minister sought orders under s.9(1)(b)(ii) of the 1995 Act to vary the warrants issued by the High Court on 9th August, 2006. In that context, the trial judge considered the difference between the power to adapt a sentence under s.7(5) of the 1995 Act, on the one hand, and the power to vary the terms of a warrant under s.9 of the 1995 Act, on the other. The trial judge noted at the outset, at para. 13, that “[t]he distinction between the power to adapt and the power to vary might be regarded as a rather subtle and slender one. It is, however, one which has been carefully drawn by the Oireachtas itself, and the distinction lies at the heart of the 1995 Act.” In essence, the trial judge found that the power to adapt “implies a power to modify, or even transform the nature of the sentence at issue .... It is true that the power to adapt includes a power to vary, but the power to adapt is more far reaching and transformative in its proper exercise than a mere power to vary.”
On examining whether the defects exhibited in the present s.7 warrants could be cured by means of a variation order under s.9 of the 1995 Act, the trial judge first considered the incorrect date of commencement of the sentence as recorded on the warrant. Hogan J. considered that this was an appropriate matter for correction under s.9(1) of the 1995 Act because “[s]uch a corrective order is somewhat akin to the making of an order under the slip rule (o. 28, r. 11) and the nature of the change can properly be regarded as being appropriate to a variation order.” Further, the Court held that the making of such an order “could be said to be giving effect to the provisions of the Strasbourg Convention within the meaning of s.9(2) because it enables the duration of the sentence actually imposed by the sentencing state to be accurately reflected in the s. 7 warrant.”
However, the Court considered that the situation was different in respect of the recording of the sentence as one of 28 years on the s.7 warrants. First, the trial judge considered the nature of the sentence imposed on the prisoners. Having observed that “the sentence actually imposed by Woolwich Crown Court has no direct counterpoint in our law, since-as the Supreme Court made clear in Sweeney – we have no equivalent legislation which provides for the automatic release of the prisoner following the expiration of a fixed period of that sentence”, the trial judge found himself “driven to the conclusion that the English sentence .... requires to be adapted by means of an order under s.7(5) of the 1995 Act.” This was in part because the terms “adapt” and “vary” could not be interchangeable, and that the Oireachtas could not have intended for the terms to be so treated. Secondly, the trial judge noted that, under s.3 of the Explosive Substance Act 1883 (as substituted by s.4 of the Criminal Law (Jurisdiction) Act 1976 and as further amended), the maximum sentence which can be imposed for conspiracy to cause an explosion in this jurisdiction is 20 years. A penalty of life imprisonment is allowed for this offence in England and Wales and, indeed, the prisoners were each sentenced to 28 years in respect of this offence. At this point, the Court observed that s.7(6)(a) of the 1995 Act (as amended) provides that the adapted sentence cannot exceed the maximum penalty prescribed in our law in respect of the corresponding offence. However, the Court noted, at para. 22, that s. 9, which contains the power to vary, contains no such stipulation, and that this represented:
a further clear indication from the actual text of the statute that where (as here) the sentence imposed by the foreign court is greater than the maximum penalty prescribed by our law in respect of the corresponding offence, an adaptation order under s.7(5) is required .... Why else would s.7(6)(a) contain a prohibition of this nature governing the making of an adaptation order if the Oireachtas had also thought that a change of this kind could be achieved by the making of a variation order under s.9(1)?
Having found that this sentence required adaptation, the trial judge considered whether it was possible to make an order adapting the English sentence under s.7(5) of the 1995 Act at that point. As already noted, the power to adapt a sentence is contained in s.7(5) of the 1995 Act (as inserted by s.1 of the Transfer of Sentenced Persons (Amendment) Act 1997).
The trial judge noted that this section should be read in conjunction with s.7(1) of the 1995 Act, which provides:
Where the Minister consents to a request for a transfer under s.6 of the Act, he or she shall apply to the High Court for the issue of a warrant authorising the bringing of the sentenced person into the State from a place outside the State and the taking of the person to, and his or her detention in custody at, such place or places in the State as may be specified in the warrant.
In light of the content of these provisions, the trial judge found, at para. 26 of his second judgment:
It is clear from the language of s.7(2) that an application for the transfer order has to be made before the prisoner is physically transferred into the State. It follows, inexorably, from the opening language of s.7(5)(a) (“on an application to the High Court under subsection (1) of this section ....”) that the power to adapt can only be exercised at this juncture and, specifically, that this power of adaptation cannot be exercised at any later stage.
On that basis, the Court found that it lacked jurisdiction to make the appropriate adaptation order under s.7(5) of the 1995 Act (as amended). The corollary of this finding was that the s.7 warrant offered by the State to justify the detention of the prisoners was “irremediably defective, and, unfortunately .... beyond the capacity of [the] Court to correct or cure.” As a result of the finding that the s.7 warrant was manifestly defective in terms of the nature and duration of the sentence imposed, and in light of the finding that the sentence was incompatible with Irish law and required adaptation to be effective in this State, the High Court concluded that the State could not demonstrate that the detention of the prisoners was in accordance with law, “given the existence of a defective warrant which lies beyond the capacity or jurisdiction of [the] Court to rectify at this juncture.” Therefore, the Court held that the detention of the prisoners could not be shown to be lawful, and so the Court directed the release of each of them.
Against that background, a series of issues was raised before this Court which mainly derived from the appeal brought by the Governor but also, in part, derived from notices to vary served by the prisoners. In substance, those notices to vary suggested that, in the light of the determination by the trial judge of the invalidity of the relevant warrants for the reasons set out in his first judgment, the immediate release of the prisoners should have then been directed without affording the Governor or other public authority such as the Minister an opportunity to suggest to the Court that the problems in the relevant warrants could be remedied.
In addition to that issue, three questions were raised on this appeal on behalf of the Governor. The first concerned a contention that, in the circumstances of this case, the prisoners had lost any right to assert the invalidity of the warrants by which they were held (and thus to contest the validity of their continuing detention) by reason of the fact that they had applied to avail of the provisions of the 1995 Act in circumstances where it had been made clear to them that they would be expected to serve the full 28 years imprisonment imposed by the Court of Appeal of England and Wales subject only to Irish remission. There was some debate at the oral hearing as to the precise legal basis on which it was argued by the Governor that the prisoners could not, therefore, avail of any point which could be raised deriving from Sweeney. It will be necessary to return to this issue when discussing the questions raised.
Second, it was argued on behalf of the Governor that the warrant was not defective. The basis of that argument was that, as a matter of Irish law, it is said that a warrant does not have to specify the intended release date of a prisoner. On that basis it is said that the warrant issued by Peart J. accurately reflected the sentence of 28 years imposed in the Court of Appeal of England and Wales and that the release date which might result from the serving of that sentence in Ireland, being a matter of law, did not require to be specified in the warrant.
Third, it was argued that, if necessary, the courts had a jurisdiction either to amend the warrant (under what was said to be an inherent jurisdiction) or to vary the warrant (under the terms of the 1995 Act) so as to bring it into conformity with the proper lawful implementation in Ireland of an English sentence. Thus, it was suggested that if the warrant was, contrary to the submission made in respect of the second issue, defective, it could be cured by an amendment or variation of that type so that, it was said, a proper warrant thus amended would continue to justify the detention of the prisoners. In this last context it should, of course, be recalled that the form of proceedings brought by each of the prisoners involved an inquiry under Article 40 of the Constitution into the validity of their detention. The sole ultimate issue before the Court was, therefore, whether their detention was lawful. All other issues were only relevant insofar as they might touch on the question of the validity of that detention.
Finally, it is important to note that the Governor did not suggest that it was open to the Court, at this stage, to “adapt” the English sentences in question under the provisions of s.7(5) of the 1995 Act. While the question of a possible adaptation is discussed in the judgments of Hogan J. in the High Court (and in particular in the second judgment) the Governor drew attention to the fact that no application for an adaptation had been made to the High Court and emphasised that this Court was not being invited to make such an adaptation order. The question of whether an adaptation order could be made after a prisoner had been brought back to Ireland and imprisoned on foot of a warrant made under the 1995 Act was, in those circumstances, said not to arise.
It will, however, be necessary to consider the legislative provisions in respect of adaptation for one of the issues which may fall for consideration on these appeals concerns the question of whether the only means by which a sentence of a relevant type imposed by the courts of England and Wales can now be served in Ireland is on foot of an adapted sentence in accordance with s.7(5). In other words, it is asserted on behalf of the prisoners that an unadapted sentence of a relevant type such as that imposed in England and Wales in these cases is not capable of being the subject of a valid warrant under the 1995 Act. Obviously if that proposition were to find favour then, no adaptation having been made nor any adaptation being now sought, it would follow that there could not be a valid Irish warrant. The question of adaptation is also relevant insomuch as the trial judge distinguished sharply between adaptation under s.7(5) and variation under s.9. It is, however, important to emphasise that the question of adaptation only arises in that indirect way given the absence of any application on the part of the Governor (or, indeed, any other State officer such as the Minister) for an adaptation order. We propose to deal with the issues in the order in which we have described them. We will deal with the questions raised in the prisoners’ notices to vary in the context of discussing whether any defect in the relevant warrants is capable of being cured as those issues form an integral part of the discussion which properly arises in that context.
5. Can the Prisoners Raise these Issues?
The case made on behalf of the prisoners can be described, with some justification, as unmeritorious. It is, and was, a fundamental requirement of the scheme that an applicant for transfer to his home country must be a sentenced person and, indeed, that such sentence must be final. It is, therefore, a requirement of a successful application that there should be no question about the obligation of the applicant in question to serve a prison sentence. The only thing the scheme does, in ease of prisoners, is to permit them to serve that sentence in their home country. Yet the logic of the prisoners’ position in these proceedings is that as and from the day of transfer they were not lawfully detained in prison and were entitled to be released. Furthermore, the prisoners had agitated for the transfer, had been notified of their likely release date, and had signed letters accepting that the transfer was on that basis. All this can certainly be said to raise some issues as to the entitlement of the prisoners to advance arguments that they were in unlawful custody once transferred. However, in Caffrey v Governor of Portlaoise Prison  1 I.R. 637, this Court, at para. 33 of the judgment of the Chief Justice, endorsed the approach of the High Court judge (Charleton J.) that a prisoner could not by consent or apparently by acquiescing in the form of his detention render what is not in law a valid form of imprisonment into a lawful detention. Since this is a recent decision of this Court, made in the context of the same statutory scheme, which was not directly challenged in this appeal, we consider that it is necessary to address the legal validity of the prisoners’ detention without regard to their conduct in seeking a transfer. We would reserve for another occasion the question as to whether, and in what circumstances, if any, a party may become disentitled to advance arguments as to the invalidity of his detention.
6. The Validity of the Warrant
The starting point for any discussion on this question must be to emphasise the importance of ensuring that any court order which imposes a significant obligation on any party be clear and unequivocal in its terms. This principle is of particular importance in the context of any court order or warrant which justifies depriving a person of their liberty. Persons, such as the Governor in this case, who are entitled to detain individuals as a result of an order made by a court should be given, by the order in question, clarity as to the precise terms of the deprivation of liberty authorised by the order concerned.
In that context, it is true, as was argued by counsel for the Governor, that it has never been suggested that an order justifying the detention of an accused who was convicted of a criminal offence and sentenced to a period of imprisonment must specify the likely release date of the prisoner concerned. However, the court order ought, itself, to be clear. The person concerned will have been sentenced to a specified period of imprisonment. Unless otherwise expressly provided in the court order, that period will commence from the day of the order. Subject to any question of remission or early release, the order or warrant will be clear as to the date on which the term of imprisonment expires, which will be the day on which the term of the sentence imposed by the court will run out having regard to the date when the sentence is to commence. A sentence of two years imposed today will expire two years from today.
It is, of course, the case that, in Irish law, any such prisoner will ordinarily be entitled to remission (normally of one quarter of the sentence) unless that remission is lost in accordance with the prison rules (Order 59 of the Prison Rules 2007 (as amended)). However, that entitlement to remission operates as a matter of Irish law with which it must be presumed the Governor will be familiar, and in any event is not a matter for the order of the Court. It is, to use the language of the Convention, not a matter as to the legal nature of the sentence, but rather its administration. The likely release date (on the assumption that ordinary remission applies and that it is not, either in whole or in part, lost) can be conclusively determined by reference to the court order itself and to the prison rules. There is no ambiguity. The fact that the court order does not make reference to the possibility of remission and the date on which release might be expected in the event that ordinary remission applies, is, therefore, neither here nor there. The Governor is bound, as a matter of Irish law, to apply remission in accordance with the prison rules. Subject to the proper application of such remission as a prisoner may be entitled to, the Governor is authorised to detain the prisoner for the length of sentence specified in the warrant issued by the court. The authorised period of detention can be definitively determined by reference only to the court order and warrant and the proper application of measures of Irish prison law.
However, the situation of a prisoner who is serving the balance of a foreign sentence in Ireland as a result of a warrant made under the 1995 Act may well be different. If there is no material difference between the legal nature of the sentence imposed in the requesting country and the legal nature of a sentence of imprisonment imposed in this country then no difficulty may well arise. Even then it will be necessary to adjust the terms of the warrant to take account of the time served (and, where appropriate, the remission earned) in the sentencing jurisdiction. The warrant should direct the Governor to detain the prisoner for a fixed period from the date of the warrant. To take a simple example, if a prisoner had been sentenced to ten years and had served two years in a jurisdiction which allowed remission equal to 50% of time actually served, then the warrant should authorise the Governor to detain the prisoner for a period of seven years from the date of the warrant being the period remaining of the sentence once the time served and remission earned is deducted . This seven year period would then be served subject to remission under the Irish system. That, it should be observed, is not an adaptation of the sentence, but rather its continuation but with clear language (which would not be necessary in a simple committal warrant from an Irish court) directing the Governor as to the length of time that must be served in an Irish prison, and which will then be subject to administration under Irish rules.
Certainly, where there is a material difference in the legal regimes, then a failure to specify in an Irish warrant made under the 1995 Act what precise period of imprisonment is authorised by the warrant may create an unacceptable level of uncertainty. In particular, that uncertainty may well derive from the fact that the extent of the authority conferred by the warrant to retain the relevant prisoner in custody may not be capable of being ascertained solely by reference to the terms of the warrant itself and the application of relevant provisions of Irish prison law. Rather, it would be necessary to refer to provisions of the law of the sentencing jurisdiction.
Indeed, it is worth observing that the closest parallel in this jurisdiction to the form of sentencing regime now applicable in respect of many offences in England and Wales is to a suspended sentence. As we understand it, what occurred in England and Wales was that the suspended sentence ceased to be a form of punishment available to judges, and remission as a matter of prison rules was also removed, and together these were replaced by the type of sentence described both in Sweeney and in this judgment. Its legal nature might well be described as being analogous to a form of statutorily imposed suspension of the relevant proportion (one half or one third) of the sentence without standard remission being afforded in respect of time in prison but subject to statutory terms.
While it is true that this Court has, in Sweeney, given a definitive interpretation as to how, at least at the level of principle, recent sentences for significant offences imposed in England and Wales are to translate into sentences in this jurisdiction, that interpretation by this Court was, in itself, dependent on the state of English statute law at the relevant time. As one of the distinctions between the facts and law applicable in Sweeney compared with the facts and law applicable in these cases clearly demonstrates, a change in the statute law of England and Wales has had a significant effect on the length of the term of actual imprisonment which is to be served, as a matter of law, in that jurisdiction, as a result of the imposition by a court of any particular length of sentence. At the time when the sentences in this case were imposed, the period of actual imprisonment was two thirds of the term imposed by the court. At the time when the sentence in Sweeney was imposed, the relevant proportion was one half. Without being aware of the relevant statute law of England and Wales applicable to any particular sentence, a prison governor would not, therefore, be able to determine the length of actual imprisonment authorised by a warrant which simply specified the term of imprisonment imposed by a court of England and Wales.
Thus, once it was decided in Sweeney that the changes in the law in England and Wales affected the legal nature of the sentence, a warrant which simply replicated the term of imprisonment imposed in a court in England and Wales, even when coupled with the knowledge of the proper application of measures of Irish public law (such as the law relating to remission) to such a sentence, would not, of itself , be sufficient to give clarity to a prison governor as to the amount of time which a prisoner would actually be required to serve. The prison governor would also need to know what the state of the statute law of England and Wales was at the relevant time. This demonstrates, in our view, that a warrant which simply specifies a particular period of imprisonment imposed by a court of England and Wales gives insufficient clarity as to the actual term of incarceration which is authorised for, even if supplemented by the proper application of provisions of Irish law, the warrant would be insufficient to determine definitively when continued incarceration is no longer authorised.
For those reasons, we are not satisfied that the warrant in this case can be said to be correct. Once this Court had decided in Sweeney that the statutory changes in England and Wales had affected the “legal nature” of a sentence, then the period for which a prison governor was authorised to detain a person transferred under the 1995 Act (and the period to which the Irish rules on administering prison sentences must be applied) could only be determined by understanding the relevant law applicable in England and Wales, having to hand and applying the decision of this Court in Sweeney, knowing the period served in England and applying all of these matters to the basic sentence terms imposed in England. We are satisfied that a warrant which merely specifies the period of imprisonment pronounced in sentencing by an English court is, as a result of the decision in Sweeney, undoubtedly defective. Here, it follows from the decision in Sweeney that although the English court sentenced the prisoners to 30 years imprisonment (later reduced to 28 years imprisonment on appeal) the “ legal nature and duration” of such a sentence, in accordance with the English and Welsh statutory regime, has been determined (see judgment of Murray J. at paras. 13, 21, 37 and 43) to amount to a period of imprisonment, together with a period of licensed release of nine years and four months to which effect could not be given in Irish law (without adaptation) since Irish law did not provide for that form of licensed release (Murray J. para. 42). Accordingly, any warrant should have specified a period of imprisonment of 18 years and eight months less time served in England. The warrants in this case did not do so since they had been made before the decision in Sweeney. It follows, in our view, that they are defective. It is necessary to next turn to the question of what that defect was and whether it can be cured.
7. Can the Defect be Cured?
Three interrelated questions potentially arise under this heading.
The first concerns the issue raised on the notices to vary, in which it is argued that it follows from the fact that, as the trial judge found, the warrants were defective, the release of the prisoners ought immediately to have been ordered.
The second concerns the question of whether it is possible in principle, and appropriate in the circumstances of this case, to remedy the defect either by varying the warrants in accordance with the provisions of the 1995 Act or by amending them on foot of an inherent jurisdiction of the Court.
The third issue, which, as has already been pointed out, only arises in an indirect way, is as to whether the only possible way in which a relevant sentence of imprisonment now imposed in England and Wales can be served in Ireland under the provisions of the 1995 Act is as a result of an adaptation of the sentence imposed in England and Wales.
At an earlier stage in this judgment, we noted that one of the suggestions made on behalf of the prisoners was that the order made in Sweeney was to quash the warrant, and that it followed that a similar order should have been made in these cases. It is true that Clarke J. used the term “quash” in the course of his judgment in Sweeney. It may well be that that was a loose use of language. It must be recalled that, on the assumption that the argument put forward concerning the proper implementation in Ireland of an unadapted sentence imposed in England and Wales which was advanced by Mr. Sweeney was correct, it followed that, by the time his case came before this Court, Mr. Sweeney was entitled to release. This was a central feature of the case, and indeed the reason why the case was dealt with expeditiously both in the High Court and in this Court. In reality, the question of whether the warrant was always bad, or simply did not justify his continued detention beyond a certain date, did not arise in Sweeney and was not, therefore, the subject of argument.
In those circumstances, we do not think that Sweeney can be taken as authority for the proposition that a warrant which is defective, in the sense in which the warrant in Sweeney was, and in the sense in which, for the reasons which we have just addressed, in our view the warrants in this case are, is invalid from the beginning and does not justify any detention of a transferred prisoner. Indeed, insomuch as it was addressed in Sweeney, the Court appears to have assumed that Mr. Sweeney was lawfully detained until the expiration of the period for which he could properly have been detained in England once the legal nature and effect of the English sentence had been determined. Thus, the order proposed by Murray J. at para. 47 of the judgment was a “declaration that [Mr. Sweeney] was not entitled to be detained on foot of the High Court order in question as and from the expiry of the first half of his sentence, namely, the 8 year period”. In the judgment of Clarke J., it was stated at para. 4.15 that “[g]iven that the relevant 8 year period had elapsed by the time of the hearing in this Court, it seemed to me that Mr. Sweeney was entitled to be released” and at para. 5.2 it was stated “[i]n those circumstances, and having regard to the fact that, by the time the appeal before this Court came to be heard, Mr. Sweeney had already served a period of 8 years in prison, it also seemed to me to follow that his immediate release should be directed”. It is necessary to consider now what the precise effect of the decision in Sweeney is and its impact on the resolution of these cases.
It is logical to approach this question by first considering if the warrant may be varied, and thereafter considering if the trial judge was right to adjourn the inquiry to permit an application for variation. To some extent, that latter issue may depend upon our analysis of the extent of the power of variation, its source, and whether indeed it extends to the defects identified in the warrants here.
8. Variation under section 9
Section 9 of the 1995 Act permits the Minister to apply to court to revoke or vary a warrant issued under s.7. The court may grant such variation “in order that effect may be given to the provisions of the Convention”. This indeed is one of the few references to the Convention in the 1995 Act.
As the trial judge correctly observed, there is a superficial similarity between the power of adaptation contained at s.7(5) of the Act and this power of variation. However there are a number of noteworthy distinctions.
First, the power is to vary the domestic warrant, whereas the power to adapt applies to the underlying foreign sentence.
Second, the power of adaptation is limited in time by the 1995 Act (although not by the Convention) to the time of the initial application under s.7(1) and therefore must, as a matter of Irish law, occur before a transfer is effected.
Third, the power to adapt is plainly an implementation of Article 10.2 of the Convention which provides in terms almost identical to s.7(5) that:
If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State nor exceed the maximum prescribed by the law of the administering State.
By contrast, the power to vary under s.9 is not itself limited in time, and is not made conditional on incompatibility with the law of the administering State. It is not derived from a specific provision of the Convention. Instead, it appears to be a sensible, domestic provision intended to permit the Minister and court to address and resolve issues relating to the warrant. Perhaps the most obvious circumstances where a variation may be necessary or required is where there is a failure to give complete or accurate effect to the terms of the foreign sentence, perhaps because of a misunderstanding of its terms. It appears to be a broad power designed to remedy the sort of technical problems that can crop up when it is sought to give effect to a sentence imposed in one of the other contracting states and where there is always scope for misunderstanding and, indeed, change.
On its face, therefore, the power to vary a warrant is a wide one and is potentially capable of being applied here. The trial judge accepted that this might be an initial view of the provision (and indeed adjourned the hearing for the purposes of considering an application to vary) but after hearing argument took the view that the power of variation under s.9 must be more narrowly construed. He came to this conclusion because he considered that a distinction, albeit a fine one, had been made by the Oireachtas between adaptation and variation. It followed that variation should be given a more narrow interpretation so that it could not apply in circumstances appropriate for adaptation, that is where a sentence to be continued was incompatible in its legal nature or duration with the law of the State. In this case, the application of Sweeney was to the effect that the sentences here required a specific form of supervision in the community which did not exist in Irish law. That, he considered, was a situation which required adaptation (which was no longer available here because the order under s.7(1) had been made). Furthermore, he considered that it was significant that the power of adaptation under s.7(5) was qualified by the provisions of subsection 6 of s.7 which provides that the adapted sentence shall not aggravate the legal nature or duration of the sentence or exceed the maximum penalty in the administering State. No such provision was included in s.9. Therefore, he deduced that the power of variation under s.9 was different from, and narrower in scope than, the power of adaptation under s.7(4), and could not be applied here.
In effect, the trial judge concluded not only that adaptation and variation were different, but that they each applied to the exclusion of the other. If a situation was appropriate for adaptation of the sentence, it could not be appropriate for variation of a warrant even in part. Even though as a matter of language they were closely related and overlapping concepts, they had to be treated in law as mutually exclusive, which meant giving to the concept of variation under the 1995 Act a narrower interpretation than would follow from the ordinary meaning of the words. Put another way, the reason why the warrant here could not be varied was because of the existence of a power of adaptation, which was, however, unavailable.
One of the difficulties created for courts by the Article 40 procedure, particularly in cases which are especially complex, is that decisions must be made under significant pressure of time. Here, the trial judge produced a thoughtful and careful analysis of the power of variation within a very short time. While acknowledging the care the trial judge brought to his task, we must however respectfully disagree with this analysis. In our view, there is no reason to give a restricted and narrow reading to the power of variation. On its face it is a sensible provision designed to avoid technical difficulties with the terms of the warrant. While the result of adaptation and variation may be similar in some cases, there is a significant difference between them. Adaptation is of the (foreign) sentence: variation is of the (domestic) warrant. Adaptation is permissible only where the sentence is by its legal nature incompatible with the law of the State, and is applied to adapt the sentence “to a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed”. Variation of a warrant is more general, and is available whenever it is necessary for the purposes of giving effect to the provisions of the Convention. Perhaps most obviously in the present context, adaptation would result in the whole of the sentence being applied in Irish law, whereas variation can only have effect on the custodial portion of the U.K. sentence which is compatible with Irish law. Furthermore, the difference in derivation of the power of adaptation and variation is itself a reason to doubt an approach to interpretation which assumes that they come from the same source, and therefore must be interpreted as mutually exclusive. Once the 1995 Act is analysed in the light of the Convention it becomes apparent that s.9 was a prudent provision introduced in Irish law to permit, so far as possible, the adjustment of the warrant at any time to ensure its effectiveness and validity, and that it conformed to the sentence imposed, (or that part of it which was enforceable) and thus could give effect to the provisions of the Convention.
By the same token, we do not consider that it can be dispositive that the power of adaptation was qualified by the provisions of ss.6 but the same language is not included in s.9. The different origins of the provisions may explain the different language. The provisions of s.7(6) are derived directly from the Convention. Since variation is expressly limited to giving effect to the Convention, any variation is limited to bringing the warrant into conformity with the terms of the underlying sentence. Since that sentence is not being adapted or in any other way affected, it cannot be exceeded by variation of the warrant. It is not apparent that it would be necessary in any event to include such a provision in s.9. The fact that variation and adaptation are different and operate at different points in the process and on different subject matter, and by different criteria, is in itself not a reason to give a more restricted meaning to the term variation than would naturally be given to it. Accordingly, there is no reason to give such an artificially narrow reading to the power of variation. Indeed, the fact that the power is expressly provided for the purposes of giving effect to the Convention suggests a broad and ameliorative power.
There seems to be little dispute that the power of variation can be used at any point to bring the warrant into conformity with the sentence. Thus, if there had been an error as to the precise terms of the sentence here, and it was clarified that it was 18 years and 8 months rather than 28 years as understood initially, it would be appropriate to vary the warrant. If there had been an appeal in the U.K. and the sentence was reduced to 18 years and 8 months, variation would be permissible. If separate proceedings in the U.K. had determined that the true nature of a 28 year sentence was a sentence of 18 years and eight months then variation would be required and permissible. If such proceedings had determined that the true nature of the sentence was 18 years and eight months in prison and nine years and four months on licence, then, if an Irish Court found that release on licence was incompatible with Irish law and effect could not be given to that portion of the sentence, once again the warrant would have to varied so that it reflected the portion of the sentence enforceable in Irish law. In effect, that is what has happened here, save that the nature of the sentence has been determined by this Court in Sweeney and there is no reason not to vary the warrant to reflect that portion of the sentence that can be given effect to in Irish law. Indeed, this exercise demonstrates that it is wrong to interpret variation in this context as identical to adaptation, and therefore superfluous. Quite different results would emerge if it had been attempted to adapt these sentences in circumstances where the decision in Sweeney had been available at the time of transfer. It seems likely that the closest Irish equivalent to the sentence here would have been a sentence with a portion suspended on terms, and with the custodial sentence “grossed up” to take account of remission in Ireland. Thus, and leaving aside any question of the maximum term, the adapted sentence might be 28 years with a little over 3 years suspended on terms that on release (which with remission would be after 18 years and eight months approximately), the prisoner would be of good behaviour and would comply with such other conditions as the court might impose consistent with the provisions of U.K. law. This would be quite a different outcome to what is proposed here on a variation under s.9.
Here, the effect of the English sentence as analysed in the light of the judgment in Sweeney is the following. On its face it is a sentence of imprisonment for a term of 28 years, which, (leaving aside any question of incompatibility by reason of its length exceeding any statutory provision in Ireland), is, as imprisonment for a term of years, not itself incompatible with the law of Ireland. The original warrant granted by Peart J. sought only to enforce that term of imprisonment. However, the effect of Sweeney is that, for the purposes of determining whether it is compatible with Irish law, the legal nature of the sentence is to authorise imprisonment for a period of 18 years and eight months and supervision on licence in the community for a period of nine years and four months. The latter provision is, as Sweeney decided, not compatible with Irish law, and in the absence of adaptation under to s.7(5), it cannot be enforced. However, there is no similar incompatibility in principle with the concept of imprisonment for a term of 18 years and eight months. The only difficulty with that aspect of the sentence is that the warrant (wrongly in the light of Sweeney) provides for an imprisonment for the wrong period of 28 years. The defect in the warrant can be varied to bring the warrant into conformity with the sentence (as conclusively determined by Sweeney). Thus variation and adaptation have very different consequences. They cannot be regarded as identical and therefore potentially superfluous, leading to a narrower interpretation being required to be given to the concept of variation. The fact that even if the warrant is varied the prisoners will receive a benefit (in terms both of the nominal period of imprisonment and the remission applied to it) is a reason to conclude that variation and adaptation are distinct if overlapping concepts in law as they are in language. It is certainly not a reason to limit the natural field of application of variation. Furthermore, given the different derivation of the powers, we doubt that it is appropriate to adopt an approach to interpretation which assumes that the Oireachtas was the sole drafter of the text, and must be assumed to have intended the concepts to be mutually exclusive
The power of variation cannot be used to impose a term of licensed supervision, since that is not compatible with Irish law and could not be administered under it. Nor could variation impose some broadly analogous provision that could be administered under Irish law, since in such a case the warrant would not conform to the sentence. But this limitation on the power of variation does not mean that a sentence of 28 years cannot be varied to one of 18 years and eight months to bring that aspect of the warrant in to conformity with what has been determined to be the custodial portion of the English sentence enforceable after Sweeney. Such a variation is furthermore fully consistent with s.9 since it gives effect to the Convention by permitting the transferred prisoner to serve the custodial part of their sentence in Ireland rather than resulting in them being released in Ireland long before they would have been released under Irish or English law, something which is not just wholly inconsistent with the Convention but would be destructive of it. Indeed, it might be thought that this was precisely the sort of case where variation of a warrant would be useful, since, as this case demonstrates, while the principle embodied behind the Convention is a simple and humanitarian one, the technical business of giving legal effect to foreign sentences can give rise to many complexities and unanticipated problems. Where we differ, therefore, from the trial judge is on this relatively narrow point: we cannot agree that the existence of a power of adaptation should have the consequence of giving an unduly narrow meaning to the concept of variation.
There is one final aspect of the argument put forward on behalf of the prisoners on which we should comment. It was said that it was not possible to vary the sentence in this case in the manner urged on behalf of the Minister because, by so doing, one would be ignoring part of the sentence imposed in the sentencing jurisdiction. It was said that the only sentences capable of being enforced, and therefore varied, were those that could be “continued” in this jurisdiction . Section 7(4) provides that the effect of a warrant is to authorise the continued enforcement by the State of the relevant sentence imposed by the sentencing state concerned in its legal nature and duration. If incompatible it may be adapted. It is argued therefore that the incompatibility now identified, in the light of Sweeney, means that “the sentence concerned” cannot be enforced, either by the original warrant or any varied warrant .
Put another way the argument is about whether the non-custodial portion of the United Kingdom sentence can be taken to simply fall away because it has no counterpart in this jurisdiction. If that is so then the variation proposed would simply be to give effect to the custodial part of the sentence ignoring that portion which has fallen away. In that scenario the variation proposed would simply be one designed to give effect to the existing enforceable sentence by varying the warrant.
On the other hand if it cannot be said that the non-custodial of the UK sentence falls away then it is argued that there is no manner in which the Irish warrant can be varied so as to give effect to the United Kingdom sentence including that specific form of non-custodial sentence which now applies in that jurisdiction. To some extent the resolution of this issue depends on the effect of incompatibility of a portion of a sentence when a transfer is made without adaptation. Does a sentence which contains an incompatible element fall entirely on transfer or does only that portion which is incompatible fall so that a warrant can be issued or varied to give effect to the compatible, and in this case, custodial portion.
We have come to the view that the answer to this problem lies in the express wording of s.9 which permits variation so as to give effect to the Convention. While the Convention is not solely concerned with imprisonment as such, it is clear that the overriding focus of the Convention concerns custodial sentences. For the reasons set out in Sweeney the Convention and, therefore, its Irish implementing measures, can have no effect in the case of someone who is not liable to a current term of imprisonment no matter what other provisions a relevant sentence may contain. In those circumstances we are satisfied that, for the purposes of the Convention, it is possible to vary a warrant while retaining the entirety of the custodial aspect of a foreign sentence while, at the same time, allowing any non-custodial aspect which is incapable of enforcement in Irish law to fall away. As pointed out earlier, if it is desired to suggest that some additional punishment should be imposed in Ireland to reflect, in some proportionate and equivalent way, the non-custodial aspect of the foreign sentence, then adaption will be necessary. However, in this case it is not sought to impose anything beyond the custodial aspect of the sentence imposed in the United Kingdom. We are satisfied that it is possible to achieve this by varying the warrant in accordance with s.9 even though that may have the effect that the non-custodial aspect of the sentence imposed in the United Kingdom may fall away and cannot be enforced by any variation of the warrant . This, if correct, illustrates the fact that variation of the warrant is different in nature and scope to adaptation of the sentence.
We now turn to the question of whether the trial judge was correct to permit the Minister the opportunity to bring an application to vary. It is argued strongly on behalf of the prisoners that, once the trial judge had determined that the warrant was defective in any way, he ought to have ordered the immediate release of the prisoners who, it followed, would have been entitled to seek to evade capture and enforcement of any varied warrant even if made. This, it was said, flowed from the fact that the proceedings were an inquiry under Article 40 and that that great constitutional remedy required immediate enforcement.
It might be said this is an academic controversy for the purposes of this appeal since the effect of the trial judge’s refusal of the application for variation was the release of the prisoners. In our view a warrant may be varied and sought to be executed. Even if this Court were to determine that the trial judge should have ordered the release of the prisoners (and subsequently permitted variation of the warrant) it would make no difference now in practical terms, since the outcome would be same: the prisoners would be at liberty and the warrant would be varied. However, the lawfulness of the prisoners’ detention between the determination of the High Court that the warrant was defective and the date of the judgment of the High Court on the question of variation may be important both for the prisoners and for others and, in any event, this is an issue which is likely to arise generally but would otherwise evade review by this Court or the Court of Appeal. We consider it therefore necessary to address the issue.
9. Whether an Order for Immediate Release Required under Article 40
In our view, for a number of interlocking reasons, the High Court was justified in not making an order for immediate release on its determination that the warrants here were defective, pending an application for variation. First, and importantly, it must be recognised that the regime under which the prisoners were to serve their sentence in Ireland is unique. But even in the broader context of Article 40 proceedings there is an established jurisdiction to correct defects. Thus, in The Law of Habeas Corpus in Ireland, (Four Courts Press, Dublin 2006) at p.72, Dr. Kevin Costello states:
A well established remedial technique on habeas corpus is to permit the retroactive validation of the defectively performed procedural step at the habeas corpus hearing itself. The earliest application of this principle is the ancient common law rule under which a defective warrant may, in the course of habeas corpus proceedings, be replaced by a corrected warrant.
The same author refers to a decision in The State (Dowling) v Brennan and Kingston  I.R. 483, where Gavan Duffy J. was reluctant to permit the submission of supplementary proof because it was an application for habeas corpus and the ‘solemn and stringent language of Article 6 of the Free State Constitution precluded any such amendment’. However, the author comments, perceptively, at p.74:
However, Gavan Duffy J’s understanding that the ‘solemn and stringent language’ of Article 6 forbade amendment is not necessarily transferrable to its successor, Article 40.4.2. Article 6 required that the detainer ‘certify in writing as to the cause of the detention, and such Court or judge shall thereupon order the release of such person unless satisfied that he is being detained in accordance with the law’. The requirement in the text of Article 6 that the High Court determine ‘thereupon’ the legality of the imprisonment could plausibly be read as implicitly excluding any amendment of this original justification. Article 40.4.2, on the other hand, is not so urgently expressed. Adjudication is postponed until, firstly, the return has been made, and secondly, the detainer has been afforded the opportunity of justifying the detention. Since the opportunity to justify the detention (and not just the original return) may, in some cases be most effectively exercised by revising the original process, Article 40.4.2 may accommodate technical amendments in a way which Article 6 did not.
It is not necessary here to determine whether, absent the provisions of s.9 of the Act, the jurisdiction identified by Dr. Costello could be applied in this situation. However, the existence of such a jurisdiction supports the course taken in this case.
It is also an important feature of this case that the regime operated in this case cannot be approached as if it were a statutory provision depriving a citizen of liberty. Instead, it is a humanitarian provision designed, in the words of the Convention, to facilitate prisoners rehabilitation by allowing them to serve in their homeland (or country with which they have a close connection) a sentence imposed in another State. A fundamental starting point, indeed a qualification for application of the scheme, is therefore that the applicant has no present right to liberty. On the contrary, the person concerned must be one who it has been finally determined should be imprisoned, with the only issue being as to where that imprisonment should take place. The Convention and its implementing measure in this jurisdiction being the 1995 Act permit such detention, in ease of the prisoner, to take place in a location more convenient to them. These cases are, therefore, more akin to those cases where a prisoner challenges a warrant transferring him or her from one prison to another. The underlying obligation on the State to detain such a person is not at issue, only the validity of the warrant which determines the location at which such detention should take place. In the State (Dillon) v Kelly  I.R. 174, this Court (Ó’Dálaigh C.J., Walsh and Budd JJ.) this Court unanimously upheld the decision of Henchy J. in the High Court holding that a transfer order was invalid since it recorded that it was based on a warrant of the Central Criminal Court which had in fact been superseded by a warrant of the Court of Criminal Appeal and that, therefore, the detention of the prisoner in Portlaoise Prison was not a detention in accordance with law. However, this Court did not accept that the consequence of this ruling was that the prisoner was entitled to be released. Ó’Dálaigh C.J. stated at pp. 178 to 179:
It has been repeatedly stated in this Court that, where a prisoner is lawfully undergoing a sentence of imprisonment but his detention has been temporarily rendered illegal by his being detained in a prison not authorised by law, it is the duty of the court which orders his release from such unlawful detention to ensure that the prisoner is immediately re-arrested and lodged in a lawful place of detention to serve out the unexpired period of his sentence.
The force of this Court’s observations in that regard was emphasised by the fact that this Court issued its own warrant for the apprehension of the prisoner and for his conveyance to and lodgement into Mountjoy Prison to be detained in accordance with the terms of the valid warrant of the Court of Criminal Appeal. Again, in the State (Brien) v Kelly  I.R. 69, a young offender sentenced to detention in St. Patrick’s Institution had been transferred to Portlaoise Prison pursuant to a ministerial order under the Prevention of Crime Act 1908 certifying that he was exercising “bad influence” on other detainees. However, the minister’s order recited erroneously that the visiting committee which had reported this fact had also concluded that the offender was “incorrigible”. Accordingly, the Supreme Court quashed the order for transfer and allowed the application for habeas corpus in relation to his imprisonment in Portlaoise, but without prejudice to the enforcement of the original Circuit Court order lodging him in St. Patrick’s Institution. At pp. 79 to 80 of the reports, Ó’Dálaigh C.J. stated:
The result of this will be to require that the prosecutor will be released from his custody in Portlaoise Prison but, as the Court has pointed out, this is not to say that the prosecutor should be at liberty. There is a valid court order sentencing him to three years detention in St Patrick’s and he must serve out the balance of that sentence .... The order of the Court should be that the Governor of Portlaoise Prison should produce the body of the prosecutor before this Court at 11 o’clock to-morrow morning, when the Court will order that he be taken hence to St Patrick’s Institution to complete the sentence of three years detention imposed upon him by the Circuit Court.
These cases illustrate, in part, that the High Court exercising its jurisdiction under Article 40.4.2 approaches the position of persons lawfully sentenced to imprisonment, but particularly when such order is made by the High Court itself or a superior court, differently from the case of an ordinary citizen complaining about detention. In the old language of the law, a person lawfully convicted and sentenced was a person in execution. Thus, In re Featherstone  37 Cr. App. R. 146, it was stated by the Court of Criminal Appeal of England and Wales (Goddard L.C.J., Parker and Donovan JJ.):
The Court does not grant, and cannot grant, writs of habeas corpus to persons who are in execution, that is to say, persons who are serving sentences passed by courts of competent jurisdiction. Probably the only case in which the Court would grant habeas corpus would be if it were satisfied that the prisoner was being held after the terms of the sentence passed on him had expired.
The Court of Appeal of Northern Ireland took the same approach in perhaps less dogmatic terms In re Beggs  N.I. 121. There, after an erudite argument, Andrews L.C.J. held that the Court of King’s Bench will not in general grant a writ of habeas corpus to bring up a prisoner under a sentence, alleged to be illegal, imposed by a superior court. The proper method of review in such sentences was by way of an appeal to the Court of Criminal Appeal. In coming to this conclusion, reliance was placed on the decision in Ex parte Lees (1860) EL, BL & EL 828; 120 E.R. 718, where Lord Campbell C.J. had held that the writ of habeas corpus was not grantable “in general where the party is in execution on a criminal charge, after judgment, on an indictment in accordance to the course of the common law”. Significantly, Andrews L.C.J. also cited with approval the decision of this Court in the State (Felix Cannon) v John Kavanagh  I.R. 428. There, Maguire P. had said that a person detained for execution of sentence after conviction on indictment in the Circuit Court was “prima facie detained according to law and it would require most exceptional circumstances for this Court to grant even a conditional order of habeas corpus to a prisoner so convicted”. These cases are normally cited for the proposition that habeas corpus, and an inquiry under Article 40.4.2, will not be permissible where there is an option of appeal to the Court of Criminal Appeal, a view endorsed by Geoghegan J. in Brennan v Governor of Portlaoise Prison  3 I.R. 364, but the principle must be broader than that, and is consistent with the principle that where a defect is curable, release will not necessarily be ordered.
The position was put, elegantly, in the judgment of Henchy J. in the State (Royal) v Kelly  I.R. 259:
The mandatory provision in Article 40, s. 4, sub-s. 2, of the Constitution that the High Court must release a person complaining of unlawful detention unless satisfied that he is being detained ‘in accordance with the law’ is but a version of the rule of habeas corpus which is to be found in many Constitutions. The expression ‘in accordance with the law’ in this context has an ancestry in the common law going back through the Petition of Right to Magna Carta. The purpose of the test is to ensure that the detainee must be released if – but only if – the detention is wanting in the fundamental legal attributes which under the Constitution should attach to the detention.
The expression is a compendious one and is designed to cover these basic legal principles and procedures which are so essential for the preservation of personal liberty under our Constitution that departure from them renders a detention unjustifiable in the eyes of the law. To enumerate them in advance would not be feasible and, in any case, an attempt to do so would only tend to diminish the constitutional guarantee. The effect of that guarantee is that unless the High Court (or, on appeal, the Supreme Court) is satisfied that the detention in question is in accordance with the law, the detained person is entitled to an unqualified release from that detention. It is the circumstances of a particular case that will usually determine whether or not a detention is in accordance with the law.
Where, as in the present case, the prisoner has been convicted and sentenced by a court established by law under the Constitution, and the jurisdiction of that court to try the offence and impose the sentence has not been challenged, it would be necessary to show that the procedure has been so flawed by basic defect as to make the conviction a nullity before it could be held that the detention was not in accordance with the law.
These principles also found expression in the well known case of The State (McDonagh) v Frawley  I.R. 131. In that case, O’Higgins C.J. endorsed The State (Cannon) v Kavanagh, re Beggs and re Featherstone, and said:
The stipulation in Article 40, s. 4, sub-s. 1, of the Constitution that the citizen may not be deprived of his liberty save ‘in accordance with the law’ does not mean that a convicted person must be released on habeas corpus merely because some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law. For habeas corpus purposes, therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety, or even that jurisdiction has been inadvertently exceeded.
Again, this statement was made in the context of prisoners challenging their detention post conviction and trial. The statements are, however, consistent. Here, the prisoners must be taken to have been lawfully convicted after trial and appeal. Not only are the conviction, appeal and sentence beyond challenge in these courts, they are an essential building block of the prisoners’ entitlement to seek transfer to serve the English sentence in an Irish prison. Where the regime permitting such transfer also contains a mechanism for variation of the warrant detaining the prisoners in an Irish prison (rather than an English jail) if it contains a defect, it cannot be said that the judge was wrong to permit the relevant State authorities to seek variation of the warrant so as to cure such a defect. Put in another way, there may have been a defect or illegality attaching to the detention, but it was not such a default of a fundamental requirement that the detention could be said to be wanting in due process of law so that the Court had to proceed immediately to release the prisoners without considering the question of whether the defect or illegality attaching to the detention could be cured under the statutory regime providing for their detention. Finally, it could be said that this is consistent with the result and approach of this Court in Sweeney even if the matter was not the subject of detailed consideration. The Court (and the relevant applicant) appear to have considered that the detention of the applicant was not fundamentally flawed until such time as Mr. Sweeney was detained in an Irish prison at a point by which he would have been released in England. In the particular circumstances of these cases, therefore, we agree that the High Court was entitled to take the step of not proceeding to make a final order under Article 40.4 until it had the opportunity to consider an application for variation under s.9, which application, in the light of this judgment, ought to have succeeded.
Accordingly, we would order that the warrant here be varied to provide for imprisonment for a period of days calculated by 18 years and 8 months less the period served in England and that period served in Ireland plus remission earned in this jurisdiction. This would result in a significant reduction in time served and avoidance of release on strict terms, which would have been the case if the prisoners had served their sentence in the UK
Finally, while the provisions of the 1995 Act (as amended) may be superseded in relation to countries who are members of the European Union and subject to the provisions of the Framework Decision of 2008/909/JHA (and it is not apparent that this has been separately implemented in Irish law), the 1995 Act will remain of importance in relation to transfers to or from to countries which are not subject to the Framework Decision, or those countries who rely on the Convention and any implementing legislation as compliance with the Framework Decision, and to transfers between European Union countries which predate the coming in to force of the Framework Decision. The Convention does not appear to have given rise to legal difficulties in most of the other Convention States. The purpose of the 1995 Act (and the Convention) is essentially humanitarian and seeks to pursue the rehabilitative object of permitting prisoners to serve their sentence in an environment which is both more familiar, and permits more ready interaction with their family and friends. Hitherto, it may not have been thought to be in the interests of such prisoners to challenge the regime which allows for such transfers. However, one of the likely consequences of these proceedings will be to slow up, if not, indeed, to halt such transfers to Ireland if sentencing States cannot be confident that the sentences will be enforced. It is clear therefore that the terms of the 1995 Act may require revision. In that regard, it may be appropriate to point out that, while s.7(1) clearly contemplates that any adaptation must take place on the initial application for transfer, that limitation does not seem to be required by the Convention. Furthermore, the decision in Sweeney necessarily involved the Irish Courts in the uncomfortable exercise of analysing and seeking to determine the essential legal nature of a sentence imposed in another jurisdiction. Under the Convention, it is contemplated by Article 10(1) that, in the case of continued enforcement, “the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State”. The Convention also provides for the exchange of information from the administering State to the sentencing State which would include a statement of legal nature and duration of the sentence.
In principle therefore, any statutory regime for enforcing the Convention should make a similar provision so that disputes as to the correct legal nature and effect of a sentence should have to be brought and determined in the courts of the sentencing State. Here, the fundamental problem arose because of the dichotomy between the sentence as announced in the court and the provisions of U.K. statute law as to the meaning of such a sentence together with the manner in which such a sentence should be recorded for the purposes of a transfer. Such matters should clearly be resolved in the courts of the sentencing state, and perhaps in circumstances where all parties know and are bound by the determination.
Finally, there are some comments in Sweeney which might suggest that a sentence for the purpose of the Act only means a sentence of imprisonment. While this did not arise for decision in Sweeney, it is perhaps important to point out that sentences which involve terms of imprisonment and a term of supervised release are not excluded from the Convention or the 1995 Act. What is required is that the sentence contains a current custodial element and, in the words of the Convention, be a punishment or measure “involving deprivation of liberty”. If the sentence has some component of direct deprivation of liberty, then it appears to come within the Convention even though there may also be an element of suspension on terms. Such a “sentence” may be continued in Ireland under the terms of the Act if it is compatible with Irish law and with the Irish sentencing and probation regime and, if not, it may be adapted into terms which are. We address these matters as it is desirable that the Convention, and any replacement provision, should operate in Irish law to provide for a clear and smooth transfer of prisoners to and from Ireland. It is in the long term interests of all Irish prisoners abroad and their families, as well as in the public interest, that the regime under the 1995 Act should have clear and effective application on the ground rather than give rise to complex and protracted litigation in courts.
Chief Justice Denham
This appeal raises a matter of statutory interpretation. The members of the Court are agreed that the warrants issued by the High Court, pursuant to s. 7 of the Transfer of Sentenced Persons Acts 1995 – 1997, referred to as “the Act of 1995”, are defective. Also, it is agreed that the sentences stated in the said warrants cannot now be adapted under s. 7(5) of the Act of 1995. Thus, the issue which the court must address is whether the sentences on the said warrants can be varied pursuant to s. 9(1)(b)(ii) of the Act of 1995.
This is an appeal by the Governor of Portlaoise Prison, the respondent/appellant, who is referred to as “the Governor”, from the orders of the High Court (Hogan J.) made on the 18th June, 2014 and the 26th August, 2014.
The appeal was initially listed in the Supreme Court and then transferred to the Court of Appeal, pursuant to Article 64.3.1 of the Constitution. Subsequently, on applications to the Court, it was determined (Denham C.J., Hardiman J., Clarke J) on the 13th March, 2015, pursuant to Article 64.3.3 of the Constitution, that in each of the three cases, brought by Fintan Paul O’Farrell, Michael Christopher McDonald and Declan John Rafferty, the applicants/respondents, who are referred to collectively as “the respondents”, that the direction be cancelled:  IESCDET 10,  IESCDET 11,  IESCDET 12. The three appeals were case managed together, and then heard together.
The Hon. Mr. Justice Hardiman was a member of the Court which heard the appeal originally. However, judgment had not been delivered when the untimely death of Mr. Justice Hardiman occurred. Consequently, the appeals were relisted for hearing, on the 6th May, 2016.
On the 2nd May, 2002, in Woolwich Crown Court, in the United Kingdom, the respondents pleaded guilty to offences. These offences included:
conspiracy to cause an explosion;
entering an arrangement to make money or other property available for the purposes of terrorism;
inviting another to provide money or other property for the purposes of terrorism.
The respondents were sentenced to 30 years for the first said offence, and for the second and third named offences set out above, and another, to twelve years imprisonment on each of the said offences. The respondents appealed the sentences to the Court of Appeal of England and Wales, which, on the 15th July, 2005, quashed the sentences of thirty years and substituted sentences of twenty eight years, and affirmed the other sentences. The High Court found that these varied sentences were a final order of the Courts of England and Wales.
The respondents applied for a transfer to Ireland pursuant to the Act of 1995.
On the 28th July, 2006, the High Court issued warrants pursuant to s. 7 of the Act of 1995, providing for the transfer of the respondents to Ireland. These warrants issued by the High Court referred to the sentences in England and Wales as (a) twenty eight years imprisonment for the conspiracy to cause explosions, (b) twelve years imprisonment concurrent to the said twenty eight years imprisonment, for each of the other offences. The date of commencement of the sentences was stated to be the 7th May, 2002.
In a judgment delivered on the 26th August, 2014,  IEHC 416, the High Court (Hogan J.) addressed a number of issues, and concluded that the detention of the first named respondent could not be shown to be lawful as a valid warrant could not be produced to justify the detention. In the circumstances the High Court said that it could direct the release of the respondent in accordance with Article 40.4.2 of the Constitution. A similar order was made for each of the other respondents.
Thus, on the 26th August, 2014, the High Court ordered that the warrants in the proceedings were defective; liberty was given to the Governor to bring a notice of motion returnable for the 1st September, 2014, and the proceedings were adjourned for mention to the 3rd September, 2014.
The State (the Governor, the Minister for Justice and Equality, Ireland and the Attorney General) brought a motion for the 1st September, 2014 seeking:
In other words, the State sought to vary the original warrants. This was following the judgment of Hogan J. where he had held that the warrants were defective. But, he stated in his judgment of the of the 11th September, 2014,  IEHC 420:
I took the further view, however, that, having regard to the nature of the errors, the interests of the sentencing State and the otherwise very full description of the offences contained in the warrants, it would be appropriate that the Minister should have the opportunity, should she thought it appropriate to do so, to apply to this Court under s. 9(1)(b) of the 1995 Act to have the terms of the existing s. 7 warrant varied so that the duration of the sentence was correctly recorded and the defective warrant amended. I adjourned the present Article 40.4.2 proceedings pending the outcome of this application which the Minister has now made to this Court.
The learned High Court judge discussed the difference between the power to adapt and the power to vary a warrant under the Act of 1995.
Defect in the Date of Commencement of the Sentence
A defect in the s. 7 warrant was the date of the commencement of the sentence. The High Court took the view that this error could be corrected by the making of a variation order under s. 9(1) of the 2005 Act. The learned trial judge stated that such a corrective order is akin to an order under the Slip Rule (O. 28 r. 11).
Defect in the Sentence
The defect in the sentence referred to was then addressed. Counsel for the State submitted that the sentence could be varied, reflecting the nature of the English sentence, as interpreted in Sweeney v Governor of Loughan House Open Centre  IESC 42,  2 I.R. 732, from a sentence of twenty eight years to one of eighteen years and eight months. However, the High Court held:-
.... I find myself driven to the conclusion that the English sentence, accordingly, requires to be adapted by means of an order under s. 7(5) of the 1995 Act (the text of which is set out below). Unless the terms “adapt” and “vary” were to be treated as interchangeable by the court – something which would effectively elide and collapse the distinction so carefully drawn by the Oireachtas in the 1995 Act itself – the necessary modification of the English sentence positively requires the making of an adaptation order, so that it can be transformed into an equivalent sentence for the purposes of Irish law. This cannot be done by means of the making of a variation order under s. 9(1), as that power does not extend to the essential modification of the sentence imposed which would be required in turn to effect such a modification of the s. 7 warrant. Put another way, the power to vary cannot be exercised as a substitute for the power to adapt.
The issue for decision is whether the High Court erred in holding that it did not have power to vary the warrant in relation to the defect in the sentence. Thus, it is a question of the interpretation of the statute, in particular the analysis of the power to vary.
The Act of 1995
The Act of 1995 enabled the State to ratify the Council of Europe’s Convention on the Transfer of Sentenced Persons, 1983, which is referred to as “the Convention”. The Convention was ratified by Ireland on the 31st July, 1995, and came into force on 1st November, 1995. The purpose of the Convention is to enable prisoners serve their sentences, imposed abroad, in their home State. Thus, it is for the benefit of prisoners, so that they may serve their sentences where the language and culture are their own, and where they are near family and friends. Thus, a sentenced person may be transferred pursuant to the Convention only on the conditions, inter alia,
that the person is a national of the administering State;
that the person still has at least six months of the sentence to serve or it is indeterminate;
that the sentenced person consents to the transfer;
that the acts or omissions for which the sentence was imposed would constitute an offence in the administering State: and
that the sentencing and administering States agree to the transfer.
Section 7 of the Act of 1995 was amended in the Transfer of Sentenced Persons (Amendment) Act, 1997, to make specific provision for the adaption of the sentence by the High Court. It provides:-
Thus, the Oireachtas addresses more fully the issue of the adaption of a warrant. It is clear that such adaption takes place only at the time of the original application to the High Court. Thus, the warrants the subject of this appeal may not now be adapted.
In accordance with the law of England and Wales, the sentences in issue were to be served partly by a term of imprisonment and partly in the community. Applying an analysis of Sweeney, the High Court held that the sentences imposed in England and Wales of twenty eight years were a sentence of approximately eighteen years and eight months, whereas the sentences set out on the warrant under s. 7 of the Act of 1995 were of twenty eight years. The learned High Court judge held that the s. 7 warrants which provided for a sentence of twenty eight years, were defective.
Thus, the issue then became, and is now, whether the warrants may be varied. The High Court analysed the difference between the power to adapt a warrant under s. 7 and the power to vary under s. 9, and concluded that the Court did not have the power to vary the sentences on the warrants.
Section 9 of the Act of 1995 provides:-
This section has not been revisited by the Oireachtas.
This section applies “at any time”, thus it is not limited, as the adaption provision is, to the initial process.
Under this section a court may make profound decisions. A court may revoke a warrant. It is thus a fundamental jurisdiction to exercise a power provided by the legislation.
In the same section the Court is given power to vary the provisions of a warrant. It is thus aligned with another fundamental power, and I consider it to be of an equal stature.
In this section the Court is given jurisdiction to revoke or vary the provisions of a warrant. The procedure is protected by being provided for within the jurisdiction of the Court, being the administration of justice by a judge.
Further, the jurisdiction given to the Court is given “in order that effect may be given to the provisions of the Convention”. It follows that the section may be interpreted so as to give effect to the Convention, which is for the benefit of the prisoners. It is clear that the Court is given the power to vary warrants. It may be presumed that this is to give effect to the operation of the transfer of prisoners in accordance with law.
The provisions for adaption, and revoking or varying, are made for different times. Adaption is a provision which may be invoked initially. The warrant for the transfer then enables the transfer of prisoners. The fact that a different word is used for a jurisdiction and power at a different time reflects that it is occurring at a later time. Thus, events may have occurred that require the revocation of a warrant, which would not have occurred on the initial application. Similarly, circumstances may arise which require an application to a court to vary a warrant. The fundamental authority to imprison the prisoner, the initial sentence, was imposed by the sentencing State. The warrants that follow are to enable the application of the Convention. This is administered by the State to which the prisoner wishes to transfer. The terms “adapt” and “vary” relate to different times. It is consistent with the Convention that at both such times the warrant could be altered so as to give effect to the Convention. The Act is premised on the grounds that it is to give effect to the provisions of the Convention.
The provisions of the Act of 1995 enable the process of transferring a prisoner, so as to give effect to the Convention.
I do not consider that the use of different words limits the power to vary. The fact that the term “adapt” is used in relation to the initial process and the power to adapt a warrant, does not reduce the power to “vary”. It is entirely logical that the term “adapt” be used in relation to the initial processing of the warrant, and that, once that has occurred the legislation speaks of to “vary” the warrant.
In its ordinary meaning the word “vary” is clear. It is a departure from a former position. The term “vary” means to change or to alter, and this plain meaning is endorsed by the definitions from the dictionaries. The word “vary” is defined in the Concise Oxford English Dictionary, Tenth Edition, Revised, as:-
The fact that earlier in the Act, and earlier in time, when the warrant is being initiated in the administering State, the Court is given jurisdiction to “adapt” a warrant, does not limit the jurisdiction of the Court at a later stage to “vary” the warrant. This is a powerful jurisdiction, given in conjunction with the jurisdiction to revoke a warrant. It is a jurisdiction to give effect to the Convention. The Convention is for the benefit of prisoners. Thus, the Act of 1995 gives to the Court the power to give effect to the Convention, and so, in the overall picture, to benefit prisoners.
Consequently, I am satisfied that the High Court has jurisdiction to vary the warrants in issue. I agree with the High Court that the date of commencement on the warrants could be varied, but I disagree with the distinguished judge that the power to vary is akin to the Slip Rule. The power to vary is aligned to the power to revoke a warrant, and gives jurisdiction to vary in the manner requested by the State in this case.
I am in agreement with the joint judgment of O’Donnell J. and Clarke J.
For the reasons given I would allow the appeal.
Justice John MacMenamin
On the 19th June, 2014, the High Court (Hogan J.) directed an inquiry into the legality of the respondents’ detention in Portlaoise Prison.
Thirteen years earlier, in the year 2002, all three respondents pleaded guilty before the English courts to terrorist offences. They were sentenced to terms of imprisonment of 30 years, later reduced on appeal to 28 years duration. They commenced serving their prison terms in England. In 2006, they availed of the Transfer of Sentenced Persons Acts, 1995 to 1997 (“the Acts”). These two statutes were enacted by the Oireachtas to allow Irish prisoners in other jurisdictions to be transferred to serve out their sentences in Irish prisons. An application was made to the High Court in 2006 for warrants to allow each respondent to be transferred to custody in Ireland, and, thereafter, to be detained in Portlaoise Prison to serve the balance of their sentences.
The application to the High Court on the 19th June, 2014 was accompanied by a challenge to the constitutionality of s.7 of the Transfer of Sentenced Persons Acts, 1995 to 1997. However, in light of the conclusions which he reached on the Article 40.4 enquiry, the High Court judge did not consider it necessary to proceed with the constitutional challenge. In two judgments consequent on the inquiry, delivered successively on the 26th August, 2014 and 11th September, 2014, the judge held the detention of the respondents was not in accordance with law, and directed their release. The Governor now appeals those decisions.
This appeal concerns warrants issued pursuant to s.7 of the Acts of 1995-1997. It will be helpful now to refer to the relevant terms of the High Court warrants. The facts of each case do not differ in any material way. The relevant sections of the warrant referred to below are those issued in the case of the first named respondent, Fintan Paul O’Farrell. The other two adopt the same format, as follows:
The High Court
Warrant Pursuant to Section 7 of the Transfer of Sentenced Persons Act, 1995-1997
Two key points arise in this appeal. One relates to the ‘commencement date’ in the warrant of 7th May, 2002; a more difficult question arises from the recorded sentence of ‘28 years imprisonment’ for conspiracy.
The two Acts of 1995 and 1997 permitted the government to accede to the Convention on Transfer of Prisoners, promulgated by the Council of Europe in 1983. For reasons explained in more detail later, the High Court judge held that the Acts required that the sentences to be served in Ireland were incapable of enforcement in Ireland.
The Procedure in the High Court
The issues which arose in the application for an inquiry were by no means simple. In his first judgment, dated the 26th August, 2014, Hogan J. held that the warrants issued by the High Court on the 28th July, 2006 (as above ‘the 2006 warrant’) “incorrectly” recorded that the sentence imposed on the respondents was of 28 years, and were, to that extent, “defective”. He reached this conclusion having regard to the judgment of this Court in Sweeney v The Governor of Loughan House Open Centre  IESC 42,  2 ILRM 401. That judgment is analysed later.
The judge also held that questions regarding entitlement to remission, identified in Sweeney, led inevitably to the conclusion that the objective reality of the sentences should have had a true duration of approximately 18 years and 8 months, and that this term should have been recited in the warrant. The judge held that, as a result of differences which had arisen between the Irish and English sentencing systems; the 28 year sentence imposed by the English courts should properly have been “adapted” in 2006, pursuant to s.7(5) of the Transfer of Sentenced Persons Act, 1995.
Hogan J. considered that the adapted sentences should have been recited in the warrants. Applying principles identified in Sweeney, he held that the British system of automatic release by way of legal entitlement, after service of two-thirds (or, in the case of conviction, before April, 2005, one-half of the sentence), went to the “legal nature” of the sentence imposed by the English courts; whereas the Irish system of remission which normally provides one-quarter remission, was a matter fundamentally going to the question of the administration of the sentence in Ireland.
These findings raised serious questions regarding the validity of the warrants. Hogan J. adjourned the cases before him for further hearing. The judge had not, by that time, reached a final conclusion as to the legal consequences of the defects in the warrants, or specifically, whether the defects which he found were remediable, either by resort to other provisions of the two Acts, or by invocation of the inherent jurisdiction of the Court. At the time he delivered his first judgment, therefore, the judge had not finally concluded that the warrants were “fundamentally defective”, in such a way as would warrant directing that the respondents be released (cf. State (Royle) v Kelly  I.R. 259).
From this first judgment of the 26th August, 2014 then, there arose the closely-connected question as to whether the Minister might apply to the same court, pursuant to s.9 (1) (b) of the Act of 1995, to “vary” the 2006 warrant issued by the High Court under s.7 of the Act of 1995, so that the sentence imposed by the English courts could lawfully be modified.
After a second hearing, Hogan J. concluded in a further judgment delivered on the 11th September, 2014 that, prior to transfer in 2006, there had been a duty on the State to adapt the English sentence by means of an adaptation order under s.7(5) of the Act of 1995. Counsel for the State had applied to vary the sentences, either under s.9 of the 1995 Act, or pursuant to inherent jurisdiction. The judge held that power to “vary” a warrant, under s.9 of the Act of 1995, did not extend to a fundamental modification of the sentences actually imposed, such as would have been required to render them compatible with Irish law. Speaking of the first respondent’s warrant, he held then:
.... the English sentence in question is ineffective in law unless it has been adapted by this Court under s. 7(5) of the 1995 Act. The Court has not, however, been given the statutory power to make the necessary adaptation order after the transfer of the sentenced person has taken effect. In the absence of such a statutory power to adapt post the making of a transfer order, the Court is helpless to effect the curative action which would be necessary to remedy the defective warrant in respect of which the applicant is presently held by the respondent.
As the facts of each case were the same, the High Court held, therefore, that the detention of each of the respondents could not be shown to be lawful, as a valid warrant could not be produced to justify their detention.
The Cross Appeal
By a cross appeal, the respondents contend in this Court that the judge should have directed the respondents’ release, consequent upon his first judgment of the 26th August, 2014. As Henchy J. pointed out in the State (Royle v Kelly)  I.R. 259, it is the circumstances of a particular case that will usually determine whether or not a detention is in accordance with law. While it may be said there was an unusual elapse of time, in an Article 40.4 enquiry, between the first and second judgments, it was only after the second hearing that the judge was in a position finally to conclude that, again to quote Henchy J. in Royle, the procedure had been so fundamentally flawed by basic defect as make the warrants a nullity, and thus to hold that the respondents’ detention was not in accordance with law. Counsel for the respondents submit in the cross appeal that adjourning the matter to a further hearing was tantamount to an unlawful stay, when an absolute order granting release should have been granted. I do not agree. The judge did not grant a “stay”, but, rather, to my mind, was not in a position to reach a final conclusion on the critical issue of the legality of the detention before him until 11th September, 2014 (See N v HSE  4 I.R. 374, and by way of distinction, FX v Clinical Director CMH  IESC 1). I do not think the judge can be criticised for the procedure he adopted in this difficult case. The obligation which devolved upon him under Article 40.4 of the Constitution was to forthwith “enquire into” the complaint that the prisoners were being unlawfully detained. The judge embarked on that enquiry promptly; it was a matter for him, having heard the parties, to determine the matter in a manner best calculated to resolve the issues of law and fact raised in the proceedings, and to achieve the interests of justice (see The State (Whelan) v Governor of Mountjoy Prison  ILRM 52 at p.55, Barrington J.).
For present purposes, a full narrative of the facts must now go back some fourteen years, to the year 2001. The respondents, styling themselves members of an organisation known as the “Irish Republican Army”, travelled in that year to Slovakia, acting in the belief that they were buying arms and obtaining financial support from the then Iraqi Intelligence Service. Their intention was to meet persons whom they believed were intelligence agents of the government of Iraq, then under the control of Sadam Hussein. In fact, the people they met with were British Security Service undercover agents, who purported to be working on behalf of the then Iraqi government. The respondents engaged in negotiations to buy substantial amounts of arms and explosives for their organisation. They sought financial support. These arms and munitions, had they been put to use, would have led to very significant serious injury, or loss of life. Fortunately, their efforts failed. The respondents were arrested in Slovakia on the 5th July, 2001. They were extradited to the United Kingdom, and charged there with terrorist offences. On the 2nd May, 2002, in Woolwich Crown Court, they pleaded guilty to offences involving conspiracy to cause explosions, inviting others to provide money or property for the purposes of terrorism, and entering into an arrangement to make money or property available for terrorism. On 15th July, 2005, the sentences of 30 years imprisonment were reduced by the Court of Appeal of England and Wales (Criminal Division), to terms of 28 years, backdated to the 5th July, 2001, the date of the respondents’ arrest. Each final, reduced sentence of 28 years constitutes, in each case, what is defined in the Transfer of Sentenced Persons Acts, 1995 and 1997, as a “final order” upon which the courts in Ireland were to act in making a transfer order.
In 2005, having received legal advice, the respondents decided to avail of the transfer procedures outlined in the Transfer of Sentenced Persons Acts, 1995 to 1997. The effect of such a transfer would be to permit each of them to serve out the balance of their sentences in Ireland. In the course of these dealings, the respondents received a series of communications from Mr. Brendan Eiffe, an official of the Irish Department of Justice, indicating the terms and conditions of their transfer. The respondents signed forms of acknowledgement or acceptance, having received further legal advice. Part of that documentation was a letter, specifically drawing attention to the fact that the standard rate for remission of a sentence in Ireland was one-quarter, or 25% of the total duration of the sentence. The Department of Justice official estimated that the respondents’ final release dates would be, on transfer, the 20th January, 2022. If, however, they wished to remain in jail in England, their release date would have been significantly earlier, that is, on the 29th April, 2020. This was because of the altered legislative regime in the United Kingdom. On the 27th June, 2006, each respondent wrote, accepting the conditions imposed as being the consequence of their transfer.
To allow for the transfers, the Minister for Justice instituted proceedings under s.7 of the Acts of 1995 to 1997. Applications in that behalf were made only on an ex parte basis. No legal right of audience is provided for sentenced persons on such applications. As Laffoy J. points out in her judgment, the relevant Rules of Court precludes any right of audience for a prisoner. On the 28th July, 2006, the High Court issued the warrants impugned in these proceedings. The prisoners were transferred to Ireland on the 27th September, 2006.
Key questions which arise in this appeal include, whether applications should have been made prior to transfer, to the High Court to “adapt” the sentences, so as to render them compatible with Irish law; and whether, now, the warrants can be “varied” to render them so compatible? Under the law of England and Wales, the maximum sentence available on a charge of conspiracy to cause explosions is life imprisonment; (s.3(1) Explosive Substances Act, 1883). By contrast, the maximum sentence which may be imposed in this State for the same offence is now, and was at all material times, 20 years (s.3 Explosive Substances Act, 1883, as substituted by The Criminal Law (Jurisdiction) Act, 1976, as amended by the Offences Against the State Act, 1998, and the Criminal Justice Act, 1999). Expressing what is in Convention terms, the “non-aggravation” principle, the original Act of 1995 set out provisions under which sentences to be served in Ireland, as what is termed an “administering state” (i.e. the state receiving prisoners), should not be greater than the maximum permitted under our law. These provisions were significantly amended in 1997. There was no derogation from the Convention. The question is whether Hogan J. was correct in concluding that he could not vary sentences under the Acts of 1995 – 1997? In order to determine these issues, it is necessary now to consider, and in some detail, the Council of Europe Convention on the Transfer of Prisoners, from which our own legislation stemmed. Then, having considered the general scheme of this State’s legislation, it will be necessary to consider the judgment of this Court in Sweeney. Thereafter, it falls to make a number of further observations on the Article 40 procedure involved in making these applications, and the conduct of the respondents in consenting to be bound by Irish law. The essential question considered, finally, is whether the two warrants can now be “varied” so as to render them valid, and in accordance with law.
The Submissions of the Appellant
On behalf of the Governor, counsel submitted in this appeal that errors in the issuing process, or the body of a warrant, did not, of themselves, require prisoners to be released in an Article 40 enquiry; that a well-established remedial technique was to permit retrospective validation of a defectively performed procedural step at the enquiry itself; and that, to quote from Mr. Kevin Costello’s comprehensive text “The Law of Habeas Corpus in Ireland”, Four Courts Press 2006, the earliest application of the remediation principle is “.... the ancient common law rule under which a defective warrant may, in the course of habeas corpus proceedings, be replaced by a corrected warrant” (Costello, at page 72).
Counsel submitted that Hogan J. erred in not remediating defects in the warrants, and that the warrants could, and should, have been “varied”, in accordance with s.9 of the Act, to which reference will be made later. It was submitted that such variation, whether in accordance with s.9 of the Acts, or pursuant to inherent jurisdiction, would have had the effect of rendering the warrants valid and in accordance with the law. Counsel submitted the two Acts, in fact, allowed for variation, and that the effect of s.7 (5) (b) of the Act, as amended, was that it was lawful to enforce the sentence imposed in the sentencing state, even if the sentence exceeded the maximum that might be imposed for the same offence in this State. The Governor’s case is that in accordance with Sweeney the actual sentence imposed in this case should be seen as one of 18 years and 8 months simpliciter; (i.e. two-thirds of 28 years), that such sentence would not exceed the 20 year maximum provided for in Irish law; that the warrants correctly recorded the sentence at Woolwich Crown Court; that they did not have to set out the length of the detention; and that, to again quote Henchy J. in Royle, cited earlier, the warrants were not “wanting in the fundamental legal attributes which under the Constitution should attach to the detention”. Counsel submitted that the absence of a stipulated term of imprisonment on the warrants was not fatal. Relying on McDonagh v Frawley  I.R. 131, counsel contended that the defects were not fundamental, and that for this reason, the respondents, as prisoners in detention were dis-entitled to seek the relief sought, by habeas corpus; and that it was not open to them to challenge their detention (See, on this, Brennan v Governor of Portlaoise Prison  3 I.R. 364). Lastly, the case was made that, by acquiescence, or consent, the respondents had debarred themselves from relief.
For reasons set out in this judgment, I view certain of these contentions with concern. While understanding entirely the reasons and context in which they are made, I take the view that to hold with these submissions would be to proceed in a manner which is fundamentally at variance with both the letter and intent of the two Acts, and the Convention.
The Convention on Transfer of Prisoners
The Convention on the Transfer of Prisoners was promulgated by the Council of Europe in 1983. While, in the initial stages, prisoner transfers were often hindered by the transferring states’ refusal to have the sentence reviewed by the judicial authorities of the receiving state, later, the enforcement in the prisoner’s home country gained priority over more theoretical considerations. (See Epp ‘The European Convention’, in International Criminal Law, Bassiouni 2nd Ed Transnational Publication, New York, p563, et seq). Ireland became a signatory to, and ultimately ratified the Convention, as a step in the negotiations between the two governments and the other parties, where repatriation of prisoners held in the United Kingdom for terrorist offences became an emotive issue.
Interpretation of the Act
The 1995 Act did not incorporate or implement the Convention. Rather, it provided the lawful authority for the government to enter into the agreement (see Irish Current Law Statutes Annotated (hereafter “I.C.L.S.A.”), Boyle Ed. R62 August 1998). But, as the Court is here interpreting the statute authorising accession to an international Convention, both the text of the Convention itself, and its accompanying Explanatory Report, can be used as an interpretative aid to the legislation (Bourke v Attorney General  I.R. 36, O’Dalaigh C.J., at page 54).
It is, of course, within the power of this State to enter into a bilateral arrangement on prisoner transfer with another state. An arrangement of this type might contain such terms as might appear appropriate to each State entering a bilateral agreement. But these appeals do not concern such a bilateral agreement. Rather, they concern the interpretation of two statutes which are intended to give expression to rules set out in the Convention. For the purposes of this judgment, I confine myself to addressing only the issues necessary for the resolution of matters before the Court. The real question before the Court is whether the warrants can now be varied. This is quite a narrow question.
As set out in its Preamble, the Convention was intended further to develop international co-operation in the field of criminal law. Its intent is to allow an opportunity for prisoners to serve their prison sentences within their own countries of origin. It is, undoubtedly, partly humanitarian in its aims. Its objectives include ensuring that such co-operation should further the ends of justice, and the social rehabilitation of sentenced persons. The preamble identifies both justice and rehabilitation as being equivalent values, and does not seek to place one over the other in a hierarchy of objectives.
There are many other bilateral or multi-lateral arrangements to the same effect, both in Europe and across the globe. As a consequence of this Convention, a person sentenced abroad in one contracting state (“a sentencing state”), may be transferred to their home country (“an administering state”). They may then serve either the whole, or the remaining part of their sentence in their own states. Some 64 States acceded to the Convention, a significant number of which are not, in fact, European countries at all. Such accession was permitted by Article 18 Para. I, and Article 19, Para. I, of the Convention itself.
As Epp (referred to earlier) describes in drafting the Convention, the question of ‘sentence compatibility’ created difficulty. Justice and penal systems differ from one state to another. The administration of a sentence cannot violate the ordre public of the administering state. One of the questions to be considered in a transfer, therefore, is whether a sentence imposed in a sentencing state is compatible with the justice system in the administering state.
For the sentencing state, Article 8 of the Convention safeguards the principle non bis in idem in respect of the enforcement of the sentence after a transfer has been effected. For example, a sentencing state is prevented from enforcing the sentence, if the administering state considers enforcement of the sentence to have been completed. The enforcement of the sentence is governed by the law of the administering state, and that state alone is competent to take all appropriate decisions (Article 9 of the Convention).
Conversion or Continued Enforcement?
Because of different sentencing and penal systems, the Council of Europe expert drafting group devised two different structural approaches, whereby the provisions of the Convention might be enacted in subscribing jurisdictions. These were, respectively, the ‘Conversion’, and the ‘Continued Enforcement’ models. Ireland adopted the latter approach; perhaps from concerns as to constitutional questions which might arise in converting sentences imposed by the courts of another state.
The former, “Conversion” model, allowed an administering state to substitute its own sentence for the sentence actually imposed. This process is implemented through a judicial or administrative procedure, and necessitated a judicial decision by the administering state, wherein a sentence prescribed by law in that administering State would be substituted for the sanction imposed in the sentencing state.
In the second, more limited process, of “continued enforcement”, a member state’s court does not convert, or substitute, its own sentence for a foreign sentence; but rather is bound by, what are termed, respectively, the “legal nature” and “the duration” of the sentence imposed in the sentencing state. The Explanatory Report, as part of the travaux préparatoires to the Convention, assists in understanding both the Convention itself and, in turn, the two statutes. Paragraph 43 of that Report states, that in the case of continued enforcement, the administering state may continue the enforcement of a sentence “immediately”, or through a court or administrative order. But, what is critical from the text of the Convention is that the court of an administering state must, before transfer, adapt an incompatible sentence so as to render it compatible with national law. A sentence which is not appropriately adapted does not accord with the principles of the Convention.
Further Aspects of Continued Enforcement
In analysis of the “continued enforcement” model, as applied in this State, it is now necessary to consider two further concepts, those of “legal nature” and “duration” of a sentence.
As described at paragraph 49 of the Report, “legal nature” of a sentence is characterised as “the kind of penalty imposed where the law of the sentencing State provides for a diversity of penalties involving deprivation of liberty, such as penal servitude, imprisonment or detention.”
A further concept, “duration”, is looked to in order to ensure “that the sentence to be served in the administering State, subject to any later decision of that State on, for example, conditional release or remission, corresponds to the amount of the original sentence, taking into account the time served and any remission earned in the sentencing State up to the date of transfer.” (See Paragraphs 49 and 50 of the Explanatory Report).
The Non-Aggravation Principle
Paragraph 50 of the Explanatory Report explains that adaptation must not result in a situation where either the legal nature, or the duration, of a sentence is aggravated by adaptation; and the sentence, as adapted, must not “exceed the maximum prescribed by the law of the administering state” (paragraph 50 of the Report; Article 10.2 of the Convention.) This is known as the non-aggravation rule.
What is the Distinction Between Legal Nature and Duration?
It might be said that the actual distinction in application between “legal nature” and “duration” has created some difficulty. In Caffrey v Governor of Portlaoise Prison  1 I.R. 637, the members of this Court differed, as to whether, on the facts, the balance of a prisoner’s life sentence imposed in England, went to the “nature” or “duration” of the sentence, as defined in the Act. The majority held that what was in issue there was a ‘legal nature’ question. What is now clear is that, in our law, they are to be seen as distinct concepts. It is unnecessary for the purposes of this judgment to go further. To reiterate, the question before the Court is whether, (and to what extent), the warrants herein can be varied; there is no real dispute between the parties that the 2006 warrants are defective? While the legislation is partly humanitarian, in intent, it cannot be denied that the issue goes to the legality of whether a prisoner is lawfully detained. I do not think the Acts lend themselves to a broad interpretation, therefore. If the defects cannot be remedied, then the question arises, are they so fundamental that the respondents’ detention is unlawful in accordance with law?
Only Conversion May Take Place After Transfer
It is noteworthy that Article 11.2 of the Convention envisages that conversion might take place “after the transfer of the sentenced person” by keeping the person in custody, or otherwise ensuring the prisoner’s ongoing presence in the administering state, pending the completion of the procedure (Article 11.2). But no equivalent provision either exists, or is implied, under the “continued enforcement” model. The reason for this is not hard to understand. It is impossible to conceive that a “continued enforcement” prisoner could be present in an administering state, other than on the basis of a continuation in force of the original sentence, albeit, where necessary, suitably adapted. The sentence imposed by the trial court is ‘continued’ in being, albeit suspended in effect. The Convention does not, to my mind, envisage or identify a separate concept, known as “variation” of a sentence, as a post hoc synonym, or substitute, for “adaptation” prior to transfer. I now further examine how the Convention deals with adaptation and certain other relevant issues in a little more detail.
Continued Enforcement: Adaptation, Correspondence, Non-Aggravation
Article 10 of the Convention addresses the concept of “adaptation”; and the rules of “correspondence”; and “non-aggravation”; in the following terms:
A number of consequences flow from these provisions. In continued enforcement, the administering state is bound by the legal nature and duration of the sentence. If, however, the national law of the administering state so requires, the court of that State shall adapt the nature or duration of the sentence to the punishment or measure which, as far as possible in domestic law, corresponds with the sentence imposed by the sentencing state. This is known as ‘correspondence’. On the other hand, as pointed out earlier, the non-aggravation rule in the Convention provides that the court of the sentencing state shall not adapt a sentence beyond the maximum which may be imposed in the sentencing state itself.
Paragraph 49 of the Explanatory Report sets out:
Paragraph 50 then goes on to explain:
On closer reading, a certain ambiguity is to be found in the second and third (emphasised) sentences in Article 10.2. Are “legal nature” and “duration” to be treated as entirely distinct? As will be shown, this is a matter which was addressed in national legislation.
What is entirely clear is that, the effect of a transfer is to suspend “the enforcement of the sentence in the sentencing state” (Article 8.1 of the Convention). What occurs in the continued enforcement model must occur under recognition of the ongoing existence of the original sentence. No ‘new’ sentence is substituted for that sentence. The sentence is not converted. Article 9 of the Convention provides that, prior to a transfer, the administering state is to inform the sentencing state as to which procedure it will follow. It further provides that the “enforcement of the sentence shall be governed by the law of the administering State, and that that State alone shall be competent to take all appropriate decisions”. As the majority of this Court held in Caffrey, enforcement of the sentence is a matter for Ireland, as the administering state. This necessitates the application of the Irish parole system.
Enactment of the Convention: The Acts of 1995 and 1997
In 1995, the Oireachtas legislated so as precisely to identify the sequence, and stages, of the transfer procedure in this State. Later, by the amending the Act of 1997, the Oireachtas legislated, inter alia, to distinguish between the concepts of “legal nature” and “duration”. One may legitimately infer that one of the objects of the 1997 amendments was to permit the transfer of prisoners while maintaining the integrity of the sentences imposed. A further intent, then, was to ensure a court would be permitted to adapt a sentence that was incompatible by its duration with the laws of the State, only where an application in that regard was made by the Minister for Justice, in his or her absolute discretion. The motivation behind the amendment was to facilitate the negotiation of transfers with States which insisted that sentences imposed in their own courts could not be reduced, while at the same time allowing a mechanism for the adaptation of the duration of the sentence if the state in question had no objection to such a procedure (See I.C.L.S.A., cited earlier).
In consideration of the two statutes, it is necessary to be clear at the outset that what is in question is a “sentence”, defined in Article 1 of the Convention as meaning, 1(a) “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”; and 1(d) in referring to an administering state as being that State to which the “sentenced person” may be, or has been, transferred in order to serve his sentence. Section 1 of the Act of 1995 refers to “sentence” in very similar terms, 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”. Whether this definition may be interpreted broadly to encompass remission is not an issue which need arise.
The Scheme of the Legislation
The Acts of 1995 and 1997, obviously, deal both with transfer procedures for ‘incoming’ and ‘outgoing’ prisoners. Section 5 of the former deals with the procedure to be adopted for a prisoner being transferred from Ireland to another jurisdiction, and is not material. However, the provisions of s.6 and s.7, as amended, are essential to the situation of the ‘incoming’ respondents in this appeal.
Section 6(5) of the Act: The Legal Status of the High Court Warrant
Section 6(5) of the 1995 Act, deals with the procedure for prisoners being repatriated to Ireland. It provides that the Minister will not consent to a transfer, unless he or she is satisfied that:
.... all reasonable steps have been taken to inform the sentenced person concerned in writing in his or her own language. The sentenced person is to be made aware as to the effect on them of their detention on foot of a warrant issued by the High Court ....
The warrant, then, is the keystone for lawful detention in Ireland. It must correspond with the conditions laid down in the two Acts. The existence of a valid warrant is a necessary precondition to transfer and detention within the State. Such warrant should set out, as conditions precedent for jurisdiction, both the legal nature and duration of the sentence. Alternatively, such matters should be readily ascertainable from supporting documentation or records. Only then can the bringing of a prisoner into the jurisdiction, and his or her subsequent detention, be rendered lawful.
Section 7 Application to the High Court
The preliminary stages of an application for transfer are dealt with in ss. 7(1) to (4) of the Act of 1995. These remain unamended, and provide as follows:
Obviously, the fact that a warrant is ‘issued’ by the High Court does not necessarily mean that it is, ipso facto, valid, or of full force, and effect. Validity will depend on its fulfilment of the necessary conditions to jurisdiction. This, in turn, hinges on compliance with the Acts. I turn next to sub-section 7(5) of the Act of 1995, first as it stood in its un-amended form, and later in the form in which it was amended in 1997.
The Amendments: Section7 (5) and Section 7(10) of the Act of 1995
The need for, and effect of, amendments of the Act of 1995 can only be understood in its historical context. The amending 1997 Act was introduced in some haste, as paving the way in negotiations leading to the Good Friday Multi-Party Agreement in 1998. As enacted in 1995, s.7 (5) had provided for adaptation of a sentence, which, “by its legal nature or duration”, was “incompatible with the law” of this State. But, addressing the not-always-clear text of Article 10.2 of the Convention, s.7(6) of the 1995 Act provided that, where a sentence was adapted, it should, as far as was practicable, correspond to the nature of the sentence imposed by the sentencing state, and should not, in any event, be:
Having regard to the considerations outlined earlier, the Oireachtas enacted the amending Act in 1997. This short piece of legislation sought, in amendments to s.7 (5) and s.7 (6), to avoid any elision between the concepts of legal nature and duration. But, the effect of the amendments was to make clear that, in accordance with the section, the High Court might adapt the legal nature, and the duration of the sentence; and that in considering a sentence, a court might adapt either or both, but only on application of the Minister. On this, s.7 (5) (b) was explicit: any application to adapt legal nature or duration could only be made by the Minister, and no one else. The process of adaptation was, in a sense, to be ‘ring fenced’ for this purpose. As will be seen later, s.9 allows the warrants to be varied in certain circumstances. But does it allow sentences to be varied?
Section 7(5) now provides:
And, s.7(6) provides:
The amended Act then addresses “duration” in this way:
Both s. 7(6) (a) and s.7 (6) (b) then addressed the concepts of “correspondence”, “maximum penalty”, and “non-aggravation”, set out in Article 10.2 of the Convention.
Sections 7(7) to (9) provide:
One might well envisage, by reference to s.7 (8), why a revocation of enforcement might arise as a consequence of a decision, such as amnesty or review, in the sentencing state. But, in order further to emphasise the distinction between “legal nature”, and “duration”, the Oireachtas then provided, at s.7 (10) of the amending Act, that:
The distinction between the provisions of s.7(5)(a) and s.7(5)(b) was intended to ensure that any question of adapting the duration of a sentence could only be made to the High Court at the Minister’s “absolute discretion”. There was no such application. Precisely how this might have been done does not fall for consideration. Counsel for the Governor now relies on s.9 to seek a variation of the warrant; alternatively, seeks to invoke the inherent jurisdiction of the Court for this purpose.
Section 8 of the Act may briefly be touched on. It provides:
The remaining subsections of s.8 addresses the Minister’s powers to designate persons for the purposes of the Acts and are not material.
No argument was made that s.8 might be used to oust a challenge by way of an enquiry made under Article 40.4 of the Constitution. Moreover, (absent any other legislative contrary intention), the Acts themselves are to be interpreted harmoniously, and in a manner in accordance with the Convention, the Report, and other terms of those statutes. Insofar as legal provisions thereof create a question, or ambiguity, such question may be resolved in a manner informed by the Convention. It is necessary to bear in mind that, in legislating and applying the two Acts, Ireland sought to enunciate continued adherence to the provisions of the Convention. But it is also necessary to recollect that the Acts deal with the consequences of a prisoner’s detention. This is a deprivation of liberty. It is now necessary to address a further question, that is, how the law stood in 2006, and how it should have been applied prior to transfer of the respondents.
When Must Adaptation Take Place?
The terms of s.7, both before and after amendments, make absolutely clear that any adaptation procedure must take place prior to the sentenced person is brought into the State. On this, s.7(1) envisaged that when the Minister consented to a request for a transfer, he or she would apply to the High Court to issue a warrant authorising the bringing of the sentenced person concerned into the State from a place outside the State. This “bringing” could not be accomplished if the sentenced person was already within the territory of this State. Moreover, s.7(2) makes clear that a person may be brought into the State only when the High Court “is satisfied that the requirements specified .... have been fulfilled, and that the Minister consents to the transfer concerned.” Once these conditions have been complied with, the High Court may, then and only then, validly issue a warrant giving authority that the sentenced person be brought into the State, and detained here. For a person to be in lawful custody within the territory of the State, therefore, the warrant issued by the High Court must comply with the fundamental terms of s.7 of the Act of 1995, as amended.
The Judgment of this Court in Sweeney
It is now necessary to outline the conclusions of this Court in Sweeney. There, the applicant received a sentence of 16 years following a conviction in England for serious drug offences. The conviction was in December, 2006. Thus, the sentence was imposed after the provisions of the United Kingdom Criminal Justice Act, 2003 came into effect. Had the applicant remained a prisoner in England, he would, on foot of the United Kingdom 2003 Act, been entitled by 2006 to release having served one-half of his sentence. However, he had sought to avail of the transfer legislation. He thus continued to be detained in Ireland beyond the 8 year period. As the administering state, the Irish authorities took the view that the applicant was liable to serve a full period of 16 years, although the applicant would, of course, have been entitled to 25% remission in accordance with Irish law. There was, then, a very great disparity between the two potential outcomes. This Court held that the detention was, by the time of the appeal, unlawful.
In Sweeney’s case, this Court (Denham C.J., Murray J., Hardiman J., Clarke J., MacMenamin J.), took as a starting point the definition of “sentence” contained in Article 1 of the Convention; that is, as defined there, as any punishment or measure involving “deprivation of liberty ....”, and reflected in s.1 of the Act of 1995. Two concurring judgments were delivered.
Murray J. laid emphasis on the fact that the appellant would have been released in England under strict conditions did not take away from the objective fact that, as and from a half-way point in his sentence, he would have had to have been released by operation of the law, and thereafter been entitled to serve the remainder of his term of imprisonment at liberty in the community under “licensed conditions” (para. 42, p. 412, 2 ILRM )). Having observed that the net effect of transfer was that the appellant could not be conditionally released, he concluded:
.... 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.
Clarke J., too, considered that there was a material difference in the legal nature of the sentence, which, as a matter of binding law, operated as one of 8 years actual imprisonment, followed by 8 years in the community; by contrast with a sentence of 16 years imprisonment with the possibility of remission, even where that remission might amount to 25%. He considered that the “form and legal nature of the position in England and Wales is a sentence which is, by operation of law, in two halves. The form and legal nature of a sentence in Ireland is a single sentence, with the possibility of remission.” He concluded that to describe the sentence as being one of 16 years imprisonment, without any form of qualification, would, in his view, “fly in the face of the uncontested evidence”. (c.f. p.423 2 ILRM  para. 4.13 and para. 4.14). He was satisfied that the legal nature of the sentence imposed on the applicant, Mr. Sweeney, was one which only permitted his imprisonment for 8 years, and that for any additional period of imprisonment to be lawful, further significant steps would have been required. Clarke J. explained [see page 422 of the same report]:
Taking these considerations into account, can a “sentence” of 28 years imprisonment be interpreted as meaning anything other than a deprivation of liberty for that period? It has not been argued that Sweeney was wrongly decided, or that the decision can be convincingly distinguished in its application to these appeals.
With all these considerations in mind, one may now turn to the judgment now under appeal.
The High Court Judgments Under Appeal
The two High Court judgments were delivered, during vacation, and under serious time constraints in an Article 40 application. The trial judge engaged in a very thoughtful analysis of both the statutes, and the relevant judgments of this Court. Having pointed out that the sentencing system which now operates in England and Wales is appreciably different from that which obtains under Irish law, the judge observed that, having regard to the relevant English law, the three respondents herein would automatically have been entitled to release on sentence following completion of two-thirds of their sentences. The respondents would have then been required, under law, to serve the one-third balance of their sentence in the community; although there were circumstances whereby a prisoner could be returned to prison for misconduct during the course of the final third of his sentence.
The passages below, from the learned High Court judge’s conclusions, provide a convenient summation of certain of the issues which are necessary for determination in this appeal. Hogan J. pointed out in his first judgment:
Citing further passages from the two judgments of this Court in Sweeney, the High Court judge referred to Murray J.’s characterisation of the “objective fact” that, as and from the half-way point in his or her sentence; the prisoner would, in England, have been released by operation of law, and then would have been entitled to serve the remainder of the term of imprisonment at liberty, under licence conditions in the community. Hogan J. pointed out that immediately after pronouncement of sentence on the respondents, the sentencing judge in England had indicated the sentences should take effect from the 5th July, 2001, the date of the Slovakian arrests, but that the present warrant did not reflect this important detail. His conclusion was that the English sentence should, properly, have been adapted under s.7(5) of the Act of 1995; holding that it seemed “necessarily implicit” in Sweeney, that the continued enforcement option envisaged by Article 9(1) and Article 10(1) of the Convention (as reflected in s.7(4) of the Act of 1995), is no longer appropriate in the case, at least of sentences of this kind, imposed by the courts of England and Wales; having regard to the manner in which those sentences provide, not for remission as such, but rather for automatic release following the service of an appropriate portion of the nominated sentence imposed.
The Effect of the Warrants
In now further considering the warrants, I should address at the outset what I consider to be one of the flaws in the Governor’s case. Section 9 allows a warrant to be varied: but this is not the point; the truth is that it was the “sentence” which required to be adapted. Two questions then arise, first, how can the warrant be varied, if the sentence remains unadapted, and second, can varying the warrant also vary the sentence? These questions lie at the centre of the continued enforcement model. The effect of a warrant issued under the Acts must be to authorise the continued enforcement by the State of the sentence concerned; with due regard to any remission of sentence accrued in the sentencing state, but otherwise to have the same force and effect as a warrant imposing a sentence following conviction by the sentencing court.
In his first judgment, Hogan J. felt that the question of defects in the warrants did not fall into the category of a breach of the fundamental requirements of the law being the test in “prisoner” Article 40.4 applications as enunciated by O’Higgins C.J. in the State (McDonagh) v Frawley  I.R. 131. Hogan J. considered, rather, that the defects fell into an “intermediate category”. I would reserve consideration of whether there is such an ‘intermediate’ category for an appropriate case. The question does not require determination here.
To anticipate my conclusion, and for the reasons contained in this judgment, I consider this was, in fact, an exceptional case, where the warrants contained fundamental defects in that the detention was not in accordance with law. I hold the warrants contained a significant (but remediable) defect as to the commencement date, but also, that there exist irremediable and fundamental defects as to the procedure adopted, and as to the nature, and content, of the sentence recorded therein. I do not consider that the respondents, by their conduct, are debarred from obtaining the relief claimed.
Conduct or Waiver?
In Caffrey v Governor of Portlaoise Prison  1 I.R. 637 at p. 652 to 653, at para. 33, Denham C.J. approved the following statement of the law by Charleton J., then in the High Court:
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.
On this, Denham C.J. observed at p. 653, par. 33:
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.
The consequence of the application of this principle, as the law stands, is that a plea of waiver, consent or estoppel cannot assist the Governor. It has not been suggested that Caffrey was incorrectly decided. The observation appears directly on point. While the following observation is obiter, the circumstances of this Article 40 enquiry are distinct from those which may arise regarding waiver in the law of tort. Section 34(1)(b) of the Civil Liability Act, 1961 provides that the subsection of the provision dealing with contributory negligence “shall not operate to defeat any defence arising under a contract or the defence that the plaintiff before the act complained of agreed to waive his legal rights in respect of it, whether or not for value; but, subject as aforesaid, the provisions of this subsection shall apply notwithstanding that the defendant might, apart from this subsection, have the defence of voluntary assumption of risk.” Thus, a defendant in civil proceedings, brought under the law of tort, may escape liability
where he or she shows that by contract he is not liable, or
where he or she can show the plaintiff, before the Act agreed to, waived his legal rights in respect of it.
In either case, the burden of establishing the defence falls on the defendant (O’Hanlon v ESB  I.R. 75, at 90, per Walsh J.). I return now to the kernel question. Can the sentences be varied?
For this, it is necessary to consider s.9 of the Act of 1995 in detail.
Section 9 of the 1995 Act
Section 9 of the Act provides:
This provision, as all others in the two Acts, is part of an exhaustive and self-contained, code. There is no indication from the statutes that, having regard to some legislative, or rules-lacuna, a court could invoke its inherent jurisdiction. It is difficult to identify the parameters within which the Court might operate in adopting such a course.
Furthermore, as touched on earlier, it is evident from s.9, (quoted above), that the power given to a court under s.9 is to vary the warrant, not the sentence. Thus, unless adapted, the 28 year sentence would remain in being to be enforced. For reasons I now seek to explain, I conclude that to vary the warrant, in the manner now contended for, would, in fact, run counter to the provisions of the Acts and of the Convention; as the warrants, thus varied, would not contain the terms of an adapted English sentence.
Variation of the Commencement Date
I turn again briefly to consider where variation would have been possible. I address here the first key point identified in the earlier part of this judgment, that of the commencement date. Hogan J. was prepared to hold that backdating of the commencement date was possible. I would hold that, in such a situation, variation, hypothetically, would be lawful. This would be because the Irish authorities neglected to advert to the fact that the sentences had been backdated to the date of arrest in Slovakia. While the warrants provided a “commencement date”, clearly the ‘commencement date’ recorded should have been backdated to the starting date, viz. the 5th July, 2001. Section 9 of the Act allows for a variation, of an otherwise valid warrant, to give effect “to the provisions of the Convention”, properly so-called (Section 9(2)). The final order of the English sentencing court fell to be lawfully implemented in Ireland. There was nothing incompatible with Irish law, or with the Convention provisions, in amending the commencement date, per se. To vary the warrants, were they otherwise valid, Hogan J. considered, would be so that “effect may be given to the provisions of the Convention” (see s.9 (2) above). I think he was correct. The “backdating error” did not affect the jurisdictional force of the warrant. Again, hypothetically, such a variation would, pro tanto, give effect to the “correspondence” provisions of Article 10.2 of the Convention, and s.7 (5) of the Act of 1995, viz. that the sentence in the administering state should approximate as closely as possible to that in the sentencing state. Consequently, I would agree with the High Court finding that a variation of that type would be permissible. But, such a variation would have to be predicated on an assumption of fundamental validity of the warrants. The issues which, actually, now arise concern both the fundamental nature of the warrants and whether, under the statutes, they can be varied at all, if they are not valid in the first place?
Can the reference to “28 years” be now varied?
(a) Void / Ultra Vires
Thus, the question which must be asked is whether the warrants were, actually, issued within jurisdiction? On this, one may draw an analogy with legal authorities concerning orders of the District Court, where such orders incorrectly record the sentences imposed, and where the sentences actually recorded are in excess of the District Court’s jurisdiction.
In Sheehan v Reilly  2 I.R. 81, this Court had to consider such an invalidity on the face of a warrant. What was in question there, were sentences imposed on the applicant which, cumulatively, or in aggregate, exceeded the jurisdictional limit of the District Court. Finlay C.J. held that the District Court order reciting such sentences were invalid on its face. Thus, the Court ordered the applicant’s release (see also State de Burca v O’Luanaigh  I.R. 85, State (Tynan) v Keane  I.R. 348, and Conlin v Patterson  2 I.R. 169). If a sentence, as described on a warrant, exceeds the statutory maximum provided under law, it is void, because the sentence exceeded the power of the District Court. I think the principles enunciated there hold force by necessary analogy. It is not, of course, for this Court to “quash” High Court warrants. But the orders of the High Court, made on the 26th July, 2006, were, in my view, ultra vires the Acts of 1995 and 1997. Absent adaptation, they were issued in excess of jurisdiction. The jurisdiction vested in that court was predicated upon adaptation, because what is in question here is continuing enforcement of the sentences as imposed.
There exists a further difficulty as to the content of the warrants. The terms of the warrant are uncertain. Not the least unusual aspect of this case was the fact that in the High Court, counsel for the authorities advanced several different variants as to the legal nature and duration of the sentences actually to be served. The legal nature or duration of the sentences was not clear on the face of the warrants. It was not reasonably ascertainable by resort to other documents. The warrants did not contain such clear information.
In GE v The Governor of Cloverhill Prison  IESC 41, the Supreme Court, 28th October, 2011 (Denham J., Fennelly J. and O’Donnell J.), this Court held that the applicant was illegally held because the warrant contained only the following provisions (para. 21 of the judgment):
In exercise of the powers conferred on me by Section 5(2) of the Immigration Act, 2003, I direct that pending the making of arrangements for his/her removal from the State, that:
Gerard E, DOB 28/10/1978 be detained in Dundalk Garda Station, a prescribed place for the purpose of section 5(2)(a) of the Immigration Act, 2003 in the custody of such officer of the Minister for Justice or Member of the Garda Síochána for the time being in charge of that place.
The warrant in GE did not show, on its face, an offence, or the length of detention, or the charges, or convictions (if any). The legal nature or duration of the detention were not ascertainable by reference to the warrant or order. On this, Denham C.J. observed on behalf of this Court:
If there is ambiguity in a warrant, it may be resolved by reference to other documentation such as the Court file. However, if ambiguity or uncertainty remains, even after having recourse to surrounding documentation, then the detention is unlawful – the detention is not, in the words of the Constitution, “in accordance with law”. Even now, real doubt exists as to the nature or duration of the sentences to be served. Was the sentence 28 years (as per the warrant); or the proposed terms referred to in the Department of Justice correspondence; or 18 years, 8 months; or any one of a number of other periods proposed by counsel for the Governor, in argument in the High Court? While I express no view on the matter, I would draw attention to a different approach to the sentence which might be imposed on adaptation, to be found in R v Read  H.L.(E) p1014. There, the House of Lords concluded that, in fulfilment of the correspondence principle, a transferred prisoner should be subject to the sentence which most closely corresponded to the sentence imposed by the sentencing state.
Thus far, this judgment has considered the issues of content: excess of jurisdiction and uncertainty. These are both fundamental defects. It is necessary now to consider whether s.9 permits the type of variation urged by the respondents, so as to allow for a sentence of 18 years and 8 months.
Interpretation of the operative words of Section 9
Do the words of s.9 lend themselves to the type of remedy sought on behalf of the Governor? In my view, the terms “vary”, or “variation”, cannot be construed as a surrogate for “adapt” in the Statutes of 1995 and 1997. There are, of course, contexts where the terms ‘vary’ and ‘adapt’ may mean the same. ‘Vary’ may mean to “modify from one state to another”. ‘Adapt’ can mean “making suitable for a new use or purpose”. (cf. Concise Oxford English Dictionary, 11th Edition). But, context is all. In my view, this is not a situation where the terms are interchangeable, or where ‘vary’ can be used as a synonym for adapt. The Acts use different terminology in different places. There is a presumption in interpretation that different words should be given different meanings. A variation in terminology is taken to denote a different legal meaning (see Bennion Statutory Interpretation, Fourth Edition, Bullsworth, Section 355, and the authorities there referred to in f.n. 6). In the natural world, a creature may ‘adapt’ to a new environment, but that creature does not, itself, ‘vary’ to the new environment. An electrical device may be ‘adapted’ for use in continental Europe on a two prong basis; it is not “varied”. One can, of course, say that a court order may be “varied”, but this depends on that order having been made within jurisdiction. One can envisage ‘variations’ under s.9 properly arising in a number of scenarios. Under Article 12 of the Convention each state party may pardon, grant or commute a sentence. Under Article 13, the sentencing state only, has the right to review a judgment, so as to deal with the question of the length of the sentence or the duration. Article 14 provides that the administering state shall terminate enforcement of the sentence as soon as it is informed by the sentencing state of any decision or measure as a result of which the sentence is no longer enforceable. In such circumstances, a variation or revocation might foreseeably arise. But, critically, what is at issue here are the sentences, as well as the warrants. In my view, there is no basis upon which the words of s.9 can be used to modify the sentences which required adaptation. Section 9 only allows for revocation or variation of one or more terms of the warrant – not the sentence.
The Effect of the Variation Proposed
The sentences were not adapted. The Governor now seeks variation, not adaptation. The submission is troubling for a further reason. It raises the question of what, precisely, the Court is being asked to do? Even assuming that the warrants were valid; the process now suggested would be to retrospectively, and fundamentally, alter the content of the 2006 warrants, but not the unadapted sentences. Can such a process be countenanced under the Acts? I do not think so. What is proposed might be, unfairly, characterised as a form of retrospective “quasi-conversion”, substituting, after the elapse of some 8 years, one sentence for another. Even assuming that s.9 might be used as a substitute for a s.7 adaptation, such a process does not accord with the adaptation procedure envisaged in the Convention where, on my reading, adaptation should be prospective.
Limitations in Scope of Section 9
A further arises. Section 9 is, in its terms, narrow. In a different context, one might conceive the terms ‘vary’ or ‘variation’ might be interpreted so as to be given a broader meaning. Arguably, used with other suitable words, this might allow for a wider range of application. Such a legislative objective might, theoretically, be effected, in another case, by treating a new (and ‘varied’) valid warrant as having taken effect when the original, defective, warrant should have taken effect; or by providing, in statute, that anything done under the transfer procedure was deemed to have been done under the new “varied” warrant. But, there are no such provisions in our legislation. Section 9 is, therefore, very limited in scope. I do not agree that a broad construction of the term ‘variation’ as contained in the Act can now act as a remedy, though I readily understand the motivation for such an approach. Further, the application of the principles of construction now urged for by the Governor would render s.7 of the Act (the important adaptation provision) as mere surplusage. Proper statutory interpretation leans against such a construction.
Absence of Safeguards
More worryingly, the case advanced by the Governor would deprive ‘varied’ warrants of the rights and safeguards which protect both prisoners and subscribing states. These are set out in the Convention, and contained in s.7. Consequently, s.9, deployed as an “adaptation” would, to my mind, contain no protection against sentences imposed in Ireland, which do not have regard to the safeguards set out in s.7 of the Act.
The Construction of Section 9
In considering all these interpretive points, it is worth posing a simple rhetorical question: in a hypothetical ‘normal’ application, made prior to transfer, could the State, either, seek an adaptation, by way of s.7, or variation by s.9? Any answer to the question is given with hindsight; but it must surely be obvious. The application would be for adaptation. One can readily understand how a sentence may be adapted or converted prior to a prisoner’s transfer. However, once a transfer has taken place, the only jurisdiction is, upon applications being made, to vary the provisions of the warrant. The terms are not interchangeable, and do not allow for the same process to be carried out under a different name. What is intended, clearly, is that a warrant issued by the High Court may “at any time” be varied after being issued (cf. s.9(i) of the Act). The extension of a broad construction to the term ‘vary’ or ‘variation’ is inconsistent with the framework of the Act. The State’s position on the construction of the terms ‘vary’ or ‘variation’ is, to my mind, driven by the regrettable circumstances.
For these many reasons, therefore, I conclude s.9 simply cannot be deployed for the purposes now urged for by counsel for the Governor.
Conclusion and Summary
This is a troubling case. The arrangements in question concern the profoundly important question of mutual trust and reciprocity between two friendly neighbouring states. The respondents pleaded guilty to most serious offences. The respondents asked to be repatriated, and agreed to be bound by the Irish parole and remission terms. Many would say, that having committed these very serious crimes, the respondents should be made face the consequence of their actions for the full period of the sentence imposed. But courts are to interpret and apply the law. I would hold that the process whereby the respondents were placed in detention in Ireland was fundamentally defective. The warrants were void ab initio. In this highly unusual case, and for the reasons set out, the Article 40.4 procedure was the correct one. The circumstances are distinct from those in the State (McDonagh) v Frawley  I.R. 131, where it was held the courts should be very slow to grant relief by habeas corpus to prisoners serving sentenced imposed by a court. I do not think the terms ‘adapt’ or ‘vary’ can be interpreted broadly in that context. I would hold that neither s.9 of the Act, nor the inherent jurisdiction of the Court, can be invoked to cure the jurisdictional deficiencies which are fundamental in these cases. I make no observation on any application the State may wish to make in the future regarding the respondents. I would, therefore, dismiss the appeals.
Each of the applicants/respondents (the Respondents) on these appeals had spent approximately thirteen years in prison in the United Kingdom and in this jurisdiction when, on 18th June, 2014, each brought an application for an inquiry into the legality of his detention pursuant to Article 40.4.2 of the Constitution. The detention of the Respondents in Portlaoise Prison in this jurisdiction had been on foot of warrants issued pursuant to s. 7 of the Transfer of Sentenced Persons Acts 1995 (the Act of 1995). as amended by the Transfer of Sentenced Persons (Amendment) Act 1997 (the Act of 1997), which will hereafter be referred to collectively as the “Amended Act of 1995”. It is obvious that what triggered those applications under Article 40.4.2 was the decision of this Court in Sweeney v The Governor of Loughan House Open Centre.  2 I.R. 732 (Sweeney). While the judgments of this Court in Sweeney were delivered on 3rd July, 2014, it is clear from the judgment of Murray J. (at para. 47) that the Court decided on the hearing of the appeal in Sweeney on 28th May, 2014 that the appellant’s appeal should be allowed and that reasons for the decision would be given later.
The underlying chronology and the factual and legal circumstances on these appeals differ from the circumstances in Sweeney, in particular, due to the fact that the sentence in issue in Sweeney had been imposed by a court in England and Wales after the coming into operation of the Criminal Justice Act 2003 (the U.K. Act of 2003), whereas the Respondents on this appeal were sentenced by a court in England and Wales prior to the coming into operation of that Act. In broad terms, the application of the U.K. Act of 2003 to the sentenced person in Sweeney (Mr. Sweeney) and to the Respondents differed in that, under the law of England and Wales, the former, who had been sentenced to sixteen years imprisonment, would have been entitled to be released on licence having served half of his sentence, whereas each of the Respondents would have been entitled to be released on licence having served two-thirds of his sentence. Nonetheless, the decision of this Court in Sweeney is determinative of some of the issues which arise on the Respondents’ applications under Article 40, although, significantly, it does not address other issues which arise. As a consequence, in the judgments delivered by the other members of the Court on these appeals, there is consensus on many of the issues which have arisen. Significantly, there is consensus that the warrants issued pursuant to s. 7 of the Amended Act of 1995, on foot of which the Respondents were detained in prison in this jurisdiction, are defective. There is also consensus that in 2014 the High Court did not have jurisdiction to adapt the warrants because –
an application for adaptation pursuant to s. 7(5) of the Amended Act of 1995 would have had to have been made at the time of the application to the High Court under s. 7(1) for the issue of the warrants, that is to say, prior to the transfer of the Respondents to this jurisdiction pursuant to the provisions of the Amended Act of 1995; and
the High Court does not have inherent jurisdiction to adapt.
The High Court’s jurisdiction in relation to a warrant issued under the Amended Act of 1995 is exclusively governed by the statutory provisions thereby created, although those provisions must be applied having regard to the provisions of the Council of Europe Convention on the Transfer of Sentenced Persons done in Strasbourg on 21st March, 1983 (the Convention), which they reflect. It is the proper construction of the provisions relevant to the issues raised on the appeal which falls to be determined by this Court. While, as noted, there is consensus that, on the facts, the application of s. 7(5) could not be invoked in 2014, the residual controversy which remains is whether s. 9 of the Amended Act of 1995 confers jurisdiction on the High Court, and on this Court on appeal, to vary the warrants in issue in relation to the Respondents, so as to cure defects which have been identified in each of them. It is that issue which I propose to consider.
Before considering the relevant provisions of the Amended Act of 1995 in the context of the Convention, I propose outlining and making some observations on the process in the High Court and the judgments delivered by Hogan J. (the trial judge) in the High Court. As the factual, procedural and legal circumstances in relation to the transfer and detention in this jurisdiction of the Respondents are clearly and comprehensively outlined in the judgments of the other members of the Court, those matters will be reiterated only to the extent that is necessary.
Process in and judgments of the High Court
As has been adverted to earlier, the applications to the High Court were applications under Article 40.4.2 of the Constitution. The function of the trial judge was to determine whether each of the Respondents was being detained in prison in this jurisdiction in accordance with law and, if not satisfied that such was the case, to order the release of each. It may be worth noting that the application at first instance in Sweeney was an application, by way of judicial review, for a declaration that the warrant in issue under which Mr. Sweeney was detained was ultra vires the provisions of the Amended Act of 1995 and the principles contained in the Convention, as is recorded in the judgment of Murray J. (at para. 4). As noted by Clarke J. in his judgment (at para. 53), the substance of the case which Mr. Sweeney brought to the High Court was designed to seek that the warrant be quashed and that he be immediately released.
The trial judge delivered his first judgment on the application of one of the Respondents, Fintan Paul O’Farrell (Mr. O’Farrell), on 26th August, 2014 ( IEHC 416) (the first judgment). Following a comprehensive analysis of the sentencing system in England and Wales, of the decision in Sweeney and its implications for the application before him, and of the relevant provisions of the Amended Act of 1995, including s. 7 and s. 9, the trial judge summarised his conclusions (at para. 44 et seq.). The essential elements of those conclusions for present purposes were the following:
The final sentence imposed on Mr. O’Farrell by the Court of England and Wales was in truth a sentence of approximately 18 years and 8 months. Inasmuch as the s. 7 warrant issued by the High Court on the 28th July, 2006, under which Mr. Farrell was detained, recorded the sentence as one of 28 years, the warrant was defective.
As the sentencing system in England and Wales is so appreciably different from that which obtains in this jurisdiction, the sentence in Mr. O’Farrell’s case should more properly have been adapted pursuant to s. 7(5) of the Amended Act of 1995. There was a necessity for the sentence to be adapted at the time of the transfer of Mr. O’Farrell to this jurisdiction.
The High Court can direct the release of an applicant on an application under Article 40.4.2 “where the warrant is so defective that no proper basis for the current detention has been made by the detainer”. While the trial judge, at that stage in the process, characterised the defects in Mr. O’Farrell’s case as falling “into an intermediate category”, he found that they were too serious to be dismissed as harmless. However, he concluded that the defects were not at that stage “so pervasive as to destroy the validity” of the warrant.
On the basis of those findings, the trial judge then stated (at para. 50) that he proposed to adjourn the application under Article 40.4.2 to enable the Minister for Justice and Equality (the Minister) to apply separately to the High Court pursuant to s. 9(1)(b) of the Amended Act of 1995 –
to vary the existing s. 7 order so that the English sentence can be properly adapted into our law and, especially, that the duration and commencement of the sentence be properly recorded.
Although rule 3(1) of Order 128 of the Rules of the Superior Courts (the Rules), which governs applications under s. 9 of the Amended Act of 1995, provides that an application by the Minister pursuant to s. 9(1)(b) shall be made ex parte to the Court, it was specifically directed that any application brought by the Minister should be on notice to Mr. O’Farrell, which was appropriate, because rule 3(2) provides that an order may be made by the Court for service upon the sentenced person concerned, where that person is likely to be adversely affected in any way by the making of an order under s. 9. The trial judge made it clear that he envisaged that the Minister’s application, if brought, would be determined expeditiously, which, in fact, occurred.
The order of the High Court on the O’Farrell application under Article 40 dated 26th August, 2014 recited that the Court had found that the warrant as it stood was defective. In the curial part of the order it was ordered that –
the respondent on the application before the High Court, that is to say, the appellant on these appeals, being the Governor of Portlaoise Prison (the Governor), should have liberty to bring a notice of motion in the “herein proceedings” returnable on Monday, 1st September, 2014; and
the balance of the “herein proceedings” be adjourned to 3rd September, 2014.
An application to the High Court under s. 9(1)(b) of the Amended Act of 1995 was brought in relation to each of the Respondents, but it was brought by the Minister, not the Governor, and it was not brought in the Article 40 proceedings (Record No. 2014/1062SS) to which the Minister was not a party. The application to vary the warrant in relation to each of the Respondents was brought in plenary proceedings which had been initiated by each of the Respondents. In those proceedings declaratory relief had been sought, including declarations that the detention of the relevant respondent was unlawful and also declarations that the Amended Act of 1995 or, alternatively, that certain provisions thereof, including s. 7 and s. 9, were unlawful having regard to the provisions of the Constitution. By way of illustration, Mr. O’Farrell had initiated plenary proceedings in which he was plaintiff and in which the Governor, the Minister, Ireland and the Attorney General were defendants by plenary summons issued on 25th June, 2014 (Record No. 2014/5582P).
The application of the Minister in relation to Mr. O’Farrell’s detention was brought by notice of motion dated 28th August, 2014 in those plenary proceedings and it sought relief in the following very general and imprecise terms:
An Order pursuant to S. 9(1)(b)(ii) of the [Amended Act of 1995], varying the Warrant issued by this Honourable Court on the 9th August, 2006 in order to give effect to the provisions of the European Convention on the Transfer of Sentenced Persons.
The relevant warrant in fact had been issued pursuant to an order of the High Court made on, and was dated, 28th July, 2006, but it was corrected on 9th August, 2006 by the substitution of the Governor for the Governor of Mountjoy Prison as the person to whom it was addressed.
The Minister’s motion was expressed to be grounded on the affidavit of Gerard McDonagh sworn on 28th August, 2014. That affidavit exhibited what was referred to as “a draft amended warrant”, the purpose of which was obviously to outline the variations which the Minister required to be made pursuant to s. 9, which was undoubtedly necessary because of the lack of specificity and precision in the formulation of the relief sought in the notice of motion. Of particular significance is that certain variations were proposed in relation to the detailed particulars of the sentences for three crimes as had been outlined in the original warrant of 28th July, 2006, which particulars are quoted in the judgment of MacMenamin J. and need not be repeated here. These variations included:
the substitution in describing the sentences for “Sentences in Sentencing State” of the following:
Sentences of Imprisonment Imposed in Sentencing State.
the substitution for the sentence for the first crime as stated in the original warrant, which was stated to be “(Twenty Eight Years Imprisonment for Conspiracy to Cause Explosions at (i) above)”, of the following:
Eighteen (18) years and eight (8) months imprisonment for the offences (sic) at (i) above;
the addition after the date of the commencement of the sentences, which was stated to be 7th May, 2002, of the following words:
with sentence backdated to commence on the 5th July, 2001.
The outcome of that application was determined in the second judgment of the trial judge delivered on 11th September, 2014 ( IEHC 420) (the second judgment). In that judgment the trial judge considered the difference between a power to adapt under s. 7(5), which he stated “implies a power to modify, or even transform the nature of the sentence at issue”, and the power to vary under s. 9. It is clear that he considered that the function of the High Court on the application under s. 9 as being to determine whether “the defects exhibited in the present s. 7 warrant can be cured by means of a variation order under s. 9”. He then considered the application under s. 9 to vary the warrant by reference to two defects:
that the warrant incorrectly stated that the date of commencement of the sentences imposed on Mr. O’Farrell was 7th May, 2002, rather than the correct date, 5th July, 2001; and
that the warrant stated that the sentence imposed in the sentencing State on Mr. O’Farrell for the first of the three crimes listed was “Twenty Eight Years Imprisonment” and that the Minister was seeking that the duration of the sentence be changed from that to eighteen years and eight months.
As regards the variation sought of the defect referred to at (a) in para. 203 above, the trial judge stated (at para. 16) that such a corrective order was somewhat akin to the making of an order under the slip rule (Order 28, rule 11 of the Rules) and that the nature of the change could properly be regarded as being appropriate to a variation order. Further, the making of such an order could be said to be giving effect to the provisions of the Convention, because it enables the duration of the sentence actually imposed by the sentencing State to be accurately reflected in the warrant under s. 7. For the foregoing reasons, he made an order pursuant to s. 9(1)(b) varying the s. 7 warrant in order to reflect the correct commencement date of the sentence. 14. In relation to the defect outlined at (b) in para. 203 above, the trial judge had explained the source of that defect in his first judgment (at para. 11) as follows:
It is, however, common case between the parties that, having regard to the relevant law of England and Wales, the applicant was automatically entitled to release on licence following completion of two thirds of his sentence. In effect, the applicant was required under that law to serve the one third balance of his sentence in the community, although there are circumstances whereby that law provides that a prisoner can be returned to prison during the course of that final third of his sentence.
A sentence of eighteen years and eight months duration, as suggested by the Minister, represents two-thirds of a sentence of twenty eight years.
The trial judge observed in relation to the change in the duration of the sentence sought by the Minister (at para. 20):
.... I find myself driven to the conclusion that the English sentence, accordingly, requires to be adapted by means of an order under s. 7(5) of the 1995 Act .... Unless the terms ‘adapt’ and ‘vary’ were to be treated as interchangeable by the court – something which would effectively elide and collapse the distinction so carefully drawn by the Oireachtas in the 1995 Act itself – the necessary modification of the English sentence positively requires the making of an adaptation order, so that it can be transformed into the equivalent sentence for the purposes of Irish law. This cannot be done by means of the making of a variation order under s. 9(1), as that power does not extend to the essential modification of the sentence imposed which would be required in turn to effect such a modification of the s. 7 warrant. Put another way, the power to vary cannot be exercised as a substitute for the power to adapt.
The trial judge also noted that, as a matter of Irish law, the maximum sentence which could be imposed for the first crime itemised in the warrant, conspiracy to cause an explosion, is twenty years. In this connection, he referred to s. 7(6)(a), as amended, which expressly stipulates that the Court on an application under s. 7(5)(a), as amended, shall not either aggravate the sentence or exceed the maximum penalty prescribed by the law of the State for a similar offence, pointing to the fact that s. 9 contains no corresponding protection of that kind. The trial judge went on to state (at para. 23):
It will be seen, therefore, that, upon reading the 1995 Act as a whole and, particularly, comparing the terms of s. 7(5) and s. 7(6) on the one hand with that of s. 9(1) on the other, one is coerced to the conclusion that a change of this kind which modifies the nature of the foreign sentence requires the making of an adaptation order and is not something which can be dealt with by means of a variation order under s. 9(1).
That, in my view, is the nub of the decision of the High Court as regards the residual controversy on the appeals, although the trial judge went on to consider whether the Court could still make an adaptation order under s. 7(5).
After a detailed analysis of s. 7(5) in the overall context of s. 7 in its entirety, the trial judge concluded that the power to adapt under s. 7(5) may only be exercised by the High Court when the application for a warrant is being made under s. 7(1) and, specifically, the power to adapt cannot be exercised at a later stage. As I have recorded earlier, on the appeals there is no dispute in relation to that conclusion. The trial judge also reached another conclusion with which I agree and which I understand not to be disputed by the Governor, namely, that the Court has no inherent jurisdiction to rectify a warrant.
The foregoing conclusions and observations were summarised by the trial judge (at para. 29) as follows:
The situation can be summed up by saying that the English sentence in question is ineffective in law unless it had been adapted by this Court under s. 7(5) of the 1995 Act. The Court has not, however, been given the statutory power to make the necessary adaptation order after the transfer of the sentenced person has taken effect. In the absence of such a statutory power to adapt post the making of a transfer order, the Court is helpless to effect the curative action which would be necessary to remedy the defective warrant in respect of which the applicant is presently held by the [Governor].
As a consequence, the trial judge held that the then current detention of Mr. O’Farrell could not be shown to be lawful, as a valid warrant could not be produced to justify his detention, so that he had no alternative but to direct his release in accordance with Article 40.4.2. Indeed, all of the Respondents were released in consequence of the decision of the trial judge. Whether those conclusions were correct necessitates an in-depth analysis of the provisions of the Amended Act of 1995 in the context of the Convention.
Provisions of the Amended Act of 1995 relevant to residual controversy
As a broad view of the provisions of the Amended Act of 1995, in the context of the provisions of the Convention as a whole, has been taken in judgments of the other members of the Court, at this juncture I propose concentrating on outlining the provisions which I consider are specifically relevant to properly interpreting the nature and extent of the jurisdiction conferred on the High Court by s. 9(2), although, of course, it will be necessary to consider the proper construction of s. 9(2) in the overall context of the Amended Act of 1995 later. Having said that, it is appropriate at this stage to make some general observations as to how closely linked the terminology used in the relevant provisions of the Amended Act of 1995 is to the corresponding terminology in the Convention. For example, while there is a slight difference of terminology in defining “sentence” in each, the substance of the definition is the same in each. In Article 1 of the Convention “sentence” 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.
The only variations in the definition in s. 1 of the Act of 1995 are the substitution of the words “the commission of an offence” for “a criminal offence” and the inclusion of a tribunal as well as a court. Moreover, the same terminology is used in the Act of 1995 as is used in the Convention in defining “the sentencing State”, that is to say, the Convention state in which the person is sentenced, and in defining “the administering State”, that is to say, the Convention state to which the person may be transferred.
The Amended Act of 1995 makes provision for both applications to the Minister to transfer out of the State to another Convention state, which applications are dealt with in s. 4, and requests for transfer into the State, such requests being made to the Minister under s. 6. A request under s. 6 is to “serve the sentence or the balance of the sentence in the State”. The jurisdiction conferred on the Minister by s. 6 is to “consent to a request” subject to compliance with the requirements of that section. Section 7 deals with the issue of warrants for the bringing of persons into the State, where the Minister has consented to a request under s. 6 to transfer into the State a sentenced person to serve the sentence or the balance of the sentence in the State. The provisions of s. 7 require to be considered in some detail.
Sub-section (1) of s. 7 provides:
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.
So the authority given by the warrant issued by the High Court on the Minister’s application relates to –
bringing the sentenced person into the State,
taking that person to the specified place of detention in the State, and
detaining the person in the State at the specified place.
Sub-section (2) then sets out by reference to s. 6(3) and the requirements therein specified, which the Minister has to be satisfied are fulfilled before consent is given to a request under s. 6, which requirements the High Court must also be satisfied have been fulfilled before the High Court can issue a warrant. Those requirements correspond to the conditions for transfer stipulated in Article 3 of the Convention. It is then provided that the High Court “shall .... issue a warrant authorising the bringing of the sentenced person into the State ....” While counsel for the Governor placed emphasis on the word “shall” in subs. (2), the operation of that sub-section is, by virtue of the provisions of subs. (4), subject to subss. (5) and (6) in circumstances where those sub-sections apply. No issue has arisen as to the application, or the fulfilment, of the requirements referred to in subs. (2) in relation to any of the Respondents. Sub-section (3) sets out the power of the High Court to specify the place or places of detention and its application does not give rise to any issue on these appeals.
Sub-section (4) deals with the effect of a warrant issued under s. 7 and provides:
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.
In short, what is to be authorised by the warrant is “continued enforcement” of the sentence both in its “legal nature” and “duration”. Continued enforcement is one of the two procedures provided for in the Convention at Article 9 for giving effect to the transfer to the administering State, the other being conversion of the sentence. That the effect of the warrant issued under s. 7 is expressly subject to subs. (5) and subs. (6) is of considerable importance on these appeals in the determination of the extent of the jurisdiction conferred by s. 9 in the context of the amended Act of 1995 as a whole, having regard to the provisions of Article 10 of the Convention. By contrast, neither s. 7(5) and (6) nor Article 10 were considered by this Court to be of particular relevance to the determination of the issue which arose in Sweeney.
Viewing s. 7 from the perspective of the Convention, the template for the authority conferred by the Oireachtas by virtue of subss. (5) and (6) is Article 10.2 thereof. Article 10.1 provides that in the case of continued enforcement –
.... the administering State shall be bound by the legal nature and the duration of the sentence as determined by the sentencing State.
However, that is qualified in Article 10.2, which 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, 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.
Accordingly, while Article 10.2 makes provision for an adaptation process where necessary, when the administering State is implementing the continued enforcement of the sentence by availing of power to adapt the sentence, in addition to the requirement that the sentence as adapted shall, “as to its nature”, correspond as far as possible to the sentence to be enforced, that is to say, the sentence imposed by the sentencing State, Article 10.2 imposes limitations on the manner in which the administering State may effect such adaptation. Those limitations are the requirements that the sentence as adapted, by its nature or duration, –
shall not aggravate the sentence imposed by the sentencing State, and
shall not exceed the maximum sentence prescribed by the law of the administering State.
The power to adapt provided for in Article 10.2. of the Convention is given statutory force in subss. (5) and (6) of s. 7. Sub-section (5), as originally enacted, conferred a discretion on the High Court to adapt the sentence where “by its legal nature or duration” it was incompatible with the law of the State. Under subs. (6) of s. 7, as originally enacted, if an adaptation order was made by the Court, the requirement to correspond “as far as practicable” was imposed and the limitations in Article 10.2 were mandatory in relation to both the legal nature of the sentence and its duration. However, the Act of 1997 substituted the current subs. (5) and subs. (6), as set out in s. 1 thereof, for subs. (5) and subs. (6) of s. 7 in their original form. In providing for the adaptation of the sentence by the High Court, the amended provisions identify and distinguish two distinct circumstances in which the power to adapt is conferred on, and exercisable by, the High Court.
The first circumstance is where the sentence is by its “legal nature” incompatible with the law of the State. That circumstance is addressed in subs. (5)(a), which, as substituted by s. 1 of the Act of 1997, provides:
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.
In reality, the amendment introduced in the Act of 1997 did not alter, either procedurally or in substance, the jurisdiction of the High Court under subs. (5) as originally enacted to adapt “the legal nature of the sentence”. The power thereby conferred on the High Court arises on “an application to the High Court” under subs. (1). In other words, it is clear that the High Court has a discretion on hearing the application for a warrant under subs. (1) to adapt the legal nature of the sentence in accordance with subs. (5)(a).
However, in relation to the second circumstance, which is where the sentence by its “duration” is incompatible with the law of the State and which is addressed in subs. (5)(b), since its substitution by the Act of 1997 the position is different to that enacted in subs. (5) in its original form. Sub-section (5)(b) now provides:
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.
On a comparison of paragraph (b) with paragraph (a) in their current form and with subs. (5) as originally enacted, what is clearly apparent is that the effect of the amendment of subs. (5) is that, unless the Minister, who has absolute discretion in this regard, includes in the application under subs. (1), but not at a later stage, an application to adapt the duration of the sentence, the High Court has no jurisdiction to make an order to that effect.
Both of the distinct circumstances addressed in subs. (5) are also addressed, although separately, in subs. (6), as substituted by s. 1 of the Act of 1997, reflecting, with slight variation, the last two sentences in Article 10.2. The first circumstance, which relates to the legal nature of the sentence, is dealt with in subs. (6)(a), which provides:
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 –
The second circumstance, which relates to the duration of the sentence, is dealt with in subs. (6)(b). In fact, that provision is in similar terms to subs. (6)(a), in that it provides for a similar requirement to “correspond” as is contained in paragraph (a), although the requirement to correspond is only stipulated in Article 10.2 “[a]s to its nature”. The inclusion of the requirement of correspondence of duration could be regarded as either superfluous or inconsistent having regard to what follows. What follows in subs. (6) is that it also stipulates that similar limitations as are set out in sub-paragraphs (i) and (ii) of subs. (6)(a) shall apply, where the “duration of the sentence” is adapted under para. (b) of subs. (5). Of course, the significant distinction between the circumstances addressed in paragraph (a) and paragraph (b) is that adaptation of the duration of the sentence will only arise if the Minister, who has an absolute discretion in this regard, has applied for adaptation at the outset in the s. 7(1) application to the Court.
Section 1 of the Act of 1997 also inserted an additional sub-section into s. 7, subs. (10), which provides:
In this section, a reference to the legal nature of a sentence does not include a reference to the duration of such sentence.
That provision was obviously intended to put beyond doubt the distinction between, and the different treatment of, the “legal nature”, on the one hand, and the “duration”, on the other hand, of the sentence in the application of the jurisdiction of the High Court to adapt a sentence on the issuing of a warrant under s. 7 to bring a sentenced person into the State.
In what has been described by counsel for Mr. O’Farrell in their outline written submissions as “a very troubling submission”, counsel for the Governor in their written legal submissions set out the Minister’s position in relation to subss. (5) and (6) of s. 7 in their current form. It is stated that s. 7 has an internal coherence and it is submitted that, read as a whole, it provides for an application to be made at the absolute discretion of the Minister to adapt the duration of the sentence imposed, subject to the restriction, inter alia, that it is not to exceed the maximum sentence prescribed by Irish law, which for the most serious offence in the present case was twenty years for conspiracy to cause an explosion. The Governor’s submission then elaborates on the Minister’s position as follows:
In the Minister’s submission, that prohibition only applies, if the Court on the application of the Minister, adapts the duration of the sentence. The Oireachtas clearly envisaged a situation where the sentence to be enforced exceeded the maximum that could be imposed in this jurisdiction. The purpose of s. 7(5)(b) as amended, is to provide that the Minister can choose not to bring an application to adapt a sentence that exceeds the maximum that could be imposed in this jurisdiction. Without this amendment, transfers such as the [transfer of the Respondents] would be unlikely to obtain the consent of the sentencing State. The effect of s. 7(5)(b) is that it is lawful to enforce a sentence handed down in the sentencing State that exceeded the maximum that could be imposed for the same offence in this State. It would therefore be lawful to enforce the twenty eight year sentence imposed upon the applicants if such sentence is compatible with Irish law.
The second and third sentences in that quotation are particularly noteworthy.
An analysis of the amendment of subss. (5) and (6) of s. 7 of the Act of 1997 suggests that the purpose of the amendment was indeed as counsel for the Minister suggested in the second and third sentences in the above quotation. That is borne out by the commentary in the annotated version of the Act of 1997 referred to by MacMenamin J. in his judgment (Irish Current Law Statutes Annotated, ICLSA R. 62: August 1998), in which the annotations are authored by Professor Kevin Boyle. Having put the amendment in its historical context by stating that, while “the specific case of the U.K. sentenced Republican prisoners was the immediate cause of the measure, there was a general problem that states may be unwilling to transfer Irish prisoners unless the original sentence remains unchanged”, and having referred to the humanitarian objectives of the legislation, it is stated:
The amendment allows the Minister to negotiate transfers in cases where countries insist on the serving of the original sentence, while at the same time the mechanism is in place under the Act for adapting the duration of sentences to Irish norms, where the other country raises no objection.
It is unnecessary to consider the concerns of counsel for Mr. O’Farrell arising from the foregoing “very troubling submission”, which concerns are premised on the proposition that the Minister in 2006 intended to give effect to a sentence of twenty eight years imprisonment and that the warrant issued under s. 7 by the High Court reflected that reality. The reason why it is not necessary to do so is because immediately following the passage in the submissions on behalf of the Governor, which I have quoted above, it is stated that, by virtue of the decision of this Court in Sweeney, –
.... only the custodial portion of the sentence constitutes a ‘sentence’ within the meaning of the legislation and accordingly, the sentence of imprisonment imposed in this case was of 18 years and 8 months simpliciter and, therefore, did not exceed the maximum of 20 years in any event.
That, presumably, was the Minister’s rationale for seeking the variation of the warrant pursuant to s. 9 of the Amended Act of 1995 which would substitute eighteen years and eight months imprisonment for twenty eight years imprisonment, which was stated in the particulars in the original warrant opposite “Sentences in the Sentencing State” as being the sentence for the first offence.
While not accepting that the passage quoted in para. 233 above is a correct statement of the law, in the light of the judgments in Sweeney neither the Governor nor the Minister could have avoided making that concession. In his judgment in Sweeney, Murray J. stated as follows (at para. 46):
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.
Further, in his judgment in Sweeney, Clarke J. held that Mr. Sweeney was entitled to be released having served eight years of his sentence. He stated (at para. 82):
For those reasons, I was satisfied that the legal nature of the sentence imposed on Mr. Sweeney in England and Wales was one which provided for 8 years imprisonment followed by 8 years in the community on terms and subject to recall. In the light of the evidence, it does not seem to me to be possible to construe that sentence as being one of 16 years imprisonment in the sense in which that term is used in the 1995 Act, even though that is the way in which the sentence was described in the various documents to which reference has been made.
The reference in that passage to the evidence, is a reference to expert affidavit evidence of English law.
The applicant in Sweeney had been convicted in the year 2006 and, as has been recorded earlier, unlike the Respondents on these appeals, he had the benefit of the U.K. Act of 2003 at the time of his conviction. Moreover, the entire eight year period, being half of the sentence of sixteen years imposed on him, had elapsed at the time of the hearing of the appeal in this Court and this Court decided that he should be released. The period of eighteen years and eight months, which is equivalent to two-thirds of the sentence of twenty eight years and which the Governor and the Minister accept is the maximum period running from 5th July, 2001 for which the Respondents can be detained in prison in this jurisdiction, taking it at face value and not applying any other consideration, had not elapsed when the application under Article 40 was before the High Court, nor has it yet elapsed. While a further complication lurks in the background, that is to say, whether the Respondents have earned remission in this jurisdiction and, if so, to what extent, my understanding is that even factoring in such remission as could be earned, the relevant period has still not elapsed. Accordingly, on this appeal the obvious solution to remedy the problem resulting from the defect in the warrant which was available to the Court in Sweeney, to order the immediate release of Mr. Sweeney because the duration of the custodial sentence there had elapsed, was not available because of the Respondents’ circumstances.
Before leaving s. 7, the following observations are pertinent.
First, an application under subs. (2) of s. 7 is made to the High Court on the application of the Minister and there is nothing in the section to indicate that it is to be made ex parte. However, rule 2 of Order 128 of the Rules provides that it shall be made ex parte. Unlike rule 3 in relation to an application under s. 9, rule 2 does not give the High Court a discretion to direct that notice of the application be given to a person likely to be adversely affected, which seems to be consistent with the provisions of s. 7. In fact, the application under s. 7(1) in relation to each of the Respondents was made ex parte in July 2006 and their transfer into the State was given effect to after the order was made by the High Court on foot of that application. Presumably, any of the Respondents, if unhappy with the outcome of the application under s. 7, could have decided not to transfer to this jurisdiction.
Secondly, when the warrant is issued under s. 7 its effect, by virtue of subs. (4) of s. 7, which is quoted above, is that, subject to subss. (5) to (7), it has “the same force and effect as a warrant imposing a sentence following conviction by that court”. I understand the words “that court” to refer to the High Court as the central criminal court.
Having considered the relevant provisions of s. 7, it is now necessary to consider s. 9 in detail. The intervening section, s. 8, deals with the operation of warrants under s. 7. That section, which is premised on there being in place a valid non-defective warrant, is of no particular relevance to the issues which arise on these appeals.
Section 9 of the Amended Act of 1995 deals with the revocation and variation of warrants and it applies both to a warrant to transfer a person out of the State and a warrant issued under s. 7 to transfer a person into the State. Sub-section (1), insofar as it applies to a warrant under s. 7, provides:
If at any time it appears to the Minister appropriate, in order that effect may be given to the provisions of the Convention, that a warrant under this Act for the transfer of a person in .... the State should be revoked or varied, the Minister may –
Sub-section (2) provides that, on an application under para. (b) of subs. (1), the High Court may make an order –
.... if it considers it appropriate to do so in order that effect may be given to the provisions of the Convention.
As outlined at the beginning, the residual controversy is whether s. 9 confers jurisdiction on the High Court, and on this Court on appeal, to vary the s. 7 warrants issued on 28th July, 2006 in the manner sought by the Minister and proposed to be ordered in the joint judgment of O’Donnell J. and Clarke J. (at para. 9.11), that is to say, to provide for imprisonment for a period of days calculated by eighteen years and eight months less the period served in England and the period served in Ireland plus remission earned in this jurisdiction. It may be observed that the formula suggested in the joint judgment differs ex facie from the wording of the terms of the variation which the Minister sought by reference to the draft amended warrant exhibited in Mr. McDonagh’s affidavit. Having regard to the wording of the terms of the varied warrant as suggested in that exhibit, what the Minister was seeking was to have both the legal nature and the duration of the sentence imposed by the sentencing State fundamentally changed. What the Minister sought was that the varied warrant would describe the sentences in the sentencing State as “Sentences of Imprisonment Imposed by the Sentencing State” and would describe the duration of the sentence for the first crime as eighteen years and eight months. That description merely includes the requisite custody period in accordance with the U.K. Act of 2003, that is to say, as regards each of the Respondents, two-thirds of his sentence, but not the period of release on licence with the possibility of recall as applicable in accordance with the law of England and Wales. That raises the question whether the formula suggested in the joint judgment, although worded differently, is in substance any different from the terms of the variation sought by the Minister. In substance it is not, in that it merely makes it easier to identify the end point of the varied period of detention sought by the Minister and it properly records that remission earned must be factored in in identifying the end point.
Therefore, the core issue, which must now be considered, is whether s. 9 confers jurisdiction on the High Court to make the fundamental changes sought by the Minister to the warrants issued under s. 7 in 2006 on the motion to vary.
Before addressing that issue, it is convenient to consider submissions which were made by counsel for one of the Respondents, Declan John Rafferty (Mr. Rafferty), on the re-hearing of the appeal, which focused on the sequence of the provisions of the amended Act of 1995 dealing with transfers into the State, and their proper application on these appeals, having regard to the judgments in Sweeney. Therefore, I propose to take an overview of ss. 6 and 7 in the light of those submissions.
Overview of sections 6 and 7
Section 6 provides that the Minister may accede to a request either by the sentencing State or by the sentenced person to “serve the sentence or the balance of the sentence in the State”. On acceding to such a request, the Minister is directed by s. 7(1) to apply to the High Court for the issue of a warrant authorising, inter alia, the bringing of the sentenced person into the State. The High Court, in turn, is directed by s. 7(2) to issue such a warrant if it is satisfied that the requirements stipulated in that subsection have been fulfilled. Where a warrant is issued, its effect under s. 7(4) is to “authorise the continued enforcement by the State of the sentence .... in its legal nature and duration”, subject, however, to the provisions of, inter alia, subss. (5) and (6) of s. 7. As counsel for Mr. Rafferty emphasised, in a situation such as arose in the case of each of the Respondents, where the sentence is not adapted, the only effect of a warrant issued under s. 7 is to authorise “the continued enforcement” of the sentence or the balance of the sentence imposed by the sentencing State in its legal nature and duration.
When the High Court, on foot of the Minister’s application, on 28th July, 2006 made orders authorising the bringing of the Respondents into the State, taking the example of Mr. Rafferty, the sentence imposed by the sentencing State, in accordance with the law of the sentencing State, to use the words of Lord Bingham quoted by Murray J. in Sweeney (at para. 41) was a “composite package”. The composite package comprised two components: a period of imprisonment equivalent to two-thirds of the sentence; and a period of release on licence in the community equivalent to the remaining one-third of the sentence. Counsel for Mr. Rafferty submitted that, in those prevailing circumstances, all the High Court had jurisdiction to do on 28th July, 2006 was to issue a warrant authorising the continued enforcement of both components of the sentence. However, in the absence of adaptation, the second component could not be enforced in this jurisdiction, because, as Murray J. stated in Sweeney (at para. 43), “there is no provision in Irish law for such a form of licensed release”. Counsel identified, in my view correctly, the source of the problem with which this Court is now confronted as being that the High Court could not, in the absence of adaptation, make the appropriate order in accordance with s. 7(4), that is to say, an order issuing a warrant which authorised the “continued enforcement” of both components of the relevant sentence. Indeed, he suggested that, if the legal nature of the sentence is incompatible with the law of the State, there must be either adaptation or refusal by the High Court to issue a warrant. To focus here on the warrant, it was submitted, is wrong; rather, the source of the problem is the nature of the sentence and the failure in 2006 to address it in the order of the High Court.
In general, insofar as the issues which arise on these appeals are concerned, I think those submissions in relation to the proper application of s. 7(4) are correct. Again taking the example of Mr. Rafferty, as a matter of law, the only jurisdiction the Court had on 28th July, 2006, by virtue of the operation of s. 7(4), was to order the issuance of a warrant which would have the effect of authorising the continued enforcement of the sentence imposed in England and Wales on Mr. Rafferty in its legal nature and duration. In the absence of an order adapting that sentence, the High Court had no jurisdiction to issue a warrant merely giving effect to part of the sentence, that is to say, authorising the detention of Mr. Rafferty in prison in the State for a period equivalent to two-thirds of the sentence imposed by the sentencing State, while ignoring the remainder of the sentence, that is to say, the on licence in the community component.
To purport to do so would be contrary to the provisions of s. 7. To purport to do so would also be in contravention of the Convention and, in particular, Article 10.1 thereof, which is a factor which, in my view, is of prime importance on the application of s. 9. Against that background, I will consider the application of s. 9 on the Minister’s motion to vary.
Application of s. 9 on the Minister’s motion to vary
Insofar as they are applicable to the situation which arises here, that is the detention of the Respondents in the State under warrants issued under the Amended Act of 1995, the combined effect of subs. (1) and (2) of s. 9 is that –
the Minister may apply to the High Court for an order varying one or more of the provisions of the warrant under para. (b) of subs. (1), if it appears appropriate in order that effect may be given to the provisions of the Convention, and the Minister may do so “at any time”, and
the Court, on such application, may make an order of the type sought, if it considers it appropriate to do so in order that effect may be given to the provisions of the Convention.
It is important to emphasise that the jurisdiction conferred on the Court is to “vary” and what it may vary is “one or more of the provisions of the warrant”, not the sentence. If the variation of the provisions of the warrant sought by the Minister under s. 9 will, if granted, result in the nature or duration of the sentence the enforcement of which this State, as administering State, is continuing in accordance with the Convention and with s. 7(4) of the Amended Act of 1995, being varied in a manner which should have been dealt with by way of adaptation when the application under s. 7(1) was before the High Court, a question which arises is whether it could have been the intention of the Oireachtas that the High Court would have jurisdiction to sanction such variation under s. 9, so as to be free from the limitations to which the Court’s jurisdiction to adapt a sentence is subject. Those limitations are the limitation on the time for bringing an application to adapt and the limitations imposed in s. 7(6).
It is also important to emphasise that the criterion which governs whether the Minister is entitled to apply for an order to vary a provision of the warrant is whether it is appropriate in order that effect may be given to the provisions of the Convention and the same criterion applies to the exercise by the High Court of its discretion. An alternative jurisdiction is given to the High Court in s. 9(2), which must be exercised by reference to the same criterion: to revoke the warrant in its entirety. In order to determine the intention of the Oireachtas in conferring the jurisdiction conferred by s. 9(2) on the High Court, it is necessary to consider the role of “the provisions of the Convention” in the overall interpretation and application of the provisions of the Amended Act of 1995.
As is pointed out by MacMenamin J. in his judgment, the Act of 1995 did not incorporate or implement the Convention. What the Amended Act of 1995 does, as the long title makes clear, is that it makes provision “for the transfer between the State and places outside the State of persons for the time being detained in prisons, under orders made in the course of the exercise by courts and tribunals of their criminal jurisdiction”. The provision made in the Amended Act of 1995 is not confined to transfers between this jurisdiction and states which are parties to the Convention. The expression “Convention state” is defined in s. 1 of the Amended Act of 1995 as meaning a state to which the Convention applies or “a state or territory outside the State designated by the Minister for Foreign Affairs under s. 2 of the Act”. Section 2 empowers the Minister for Foreign Affairs, where the State is a party to international arrangements providing for the transfer between the State and a state or territory that is not a party to the Convention, to “designate that state or territory to be a Convention state” for the purposes of the Act of 1995. It is reasonable to infer, on the proper construction of the Amended Act of 1995 and, indeed, of the Act of 1995 as originally enacted, as a whole, that the objective of the Oireachtas in regulating the transfer of sentenced persons out of and into the State by reference to certain provisions of the Convention was to use those provisions as a template or framework for such regulation, which seems a sensible approach, given that the State intended to become a party to the Convention and, in fact, ratified the Convention in 1995 after the Act of 1995 was enacted.
However, what is clear is that, as stated at the outset (in para. 194 above), the authority of the Minister and the jurisdiction conferred on the Court by the Amended Act of 1995 is wholly derived from that Act. In interpreting a particular provision of the Amended Act of 1995, it may have to be read by reference to a specific provision of the Convention, or in the context of the Convention as a whole, to ascertain its proper construction. That is consistent with what was stated by both Murray J. and Clarke J. in Sweeney. Murray J. stated (at para. 26):
The Convention is given effect to in domestic law by the [Amended Act of 1995]. As Acts implementing an international convention they fall to be interpreted in the light of the provisions of the Convention (Bourke v Attorney General  I.R. 36; Crilly v Farrington  1 ILRM 161).
In his judgment, Clarke J. stated (at para. 61):
It follows that, in interpreting the [Amended Act of 1995], the courts should endeavour, if possible, to give it a meaning which conforms with Ireland's obligations under the Convention. However, that is the only effect of the Convention on the legal rights and obligations which arise in this case. The Convention is not part of Irish law. There are no relevant European Union measures which affect the rights and obligations which arise in this case.
Having said that, it is important not to overlook the inter-jurisdictional dimension which the Amended Act of 1995 legislates for and not to overlook the interests of another jurisdiction, which engages with the State in the transfer of prisoners in accordance with its provisions, in having those provisions properly applied in accordance with law.
It is convenient at this juncture to recapitulate on what the factual position was in relation to the Respondents, when the Minister applied to the Court in July 2006 and the Court issued the warrants dated 28th July, 2006 under s. 7. The sentence imposed in the sentencing State on each of the Respondents for the most serious offence was twenty eight years from 5th July, 2001. However, in accordance with the law of the sentencing State, as enacted in the U.K. Act of 2003, the sentence was subject to automatic release on licence in the community once two-thirds of the custodial sentence was served. Although there was express power conferred on the Minister under s. 7(5)(b) to apply to the High Court, on the application under s. 7(1) for the warrant, for an order adapting the duration of the sentence, no such application was made. Nor did the Court, as it had jurisdiction to do, adapt the legal nature of the sentence. I agree with the view expressed by the trial judge in the first judgment (at para. 21) that the sentence imposed by the sentencing State “should in fact more properly have been ‘adapted’ under s. 7(5) of the 1995 Act”. However, as that was not done, the only effect which the warrants issued in relation to the Respondents could have had, by virtue of s. 7(4), was “to authorise the continued enforcement .... of the sentence .... imposed by the sentencing State in its legal nature and duration, with due regard to any remission of sentence accrued in the sentencing State”. In the absence of adaptation by the Court pursuant to s. 7(5), applying the provisions of the Amended Act of 1995, the continued enforcement of each sentence could only take effect under the law of the State without the protective and mitigating features mandated in s. 7(6). It is against that background that it is necessary to construe s. 9(1)(b) and (2).
On a literal interpretation of s. 9, an order “varying” one or more of the provisions of the warrant means an order changing or altering one or more provisions of the warrant. An obvious question which that raises is what are the provisions of the warrant which may be varied having regard to the terms of the warrants in issue here. They must be the provisions which implement what the Court is authorised to do in s. 7(2), for example, the detention in custody of the sentenced person named in the warrant at the place specified, the effect of which provision is governed by s. 7(4). The crucial question on the interpretation of s. 9(1)(b) and (2) for present purposes, however, is whether it could have been the intention of the Oireachtas that it would be appropriate for the Minister or the High Court to conclude that, in order that effect be given to the provisions of the Convention, at a time eight years after the warrants had issued and the Respondents had been transferred to this jurisdiction, the High Court should have power to vary the warrants so as to provide for imprisonment for a period of days calculated by eighteen years and eight months less the period served in England and the period served in Ireland, allowance being made for the remission earned in this jurisdiction only, thus ignoring the other component of the sentence, namely, the on licence in the community component. In addressing that question, in my view, regard must be had to the fact that such a variation would, in reality, be a variation of the sentence imposed by the sentencing State. It is debatable whether the type of outcome such variation would produce would have been permissible on adaptation under s. 7(5). Apart from noting that the limitations provided for in s. 7(6), which would have had to have been embodied in such an adaptation order, would not have presented a problem having regard to the particular circumstances here, it would be inappropriate to express a view on such a speculative matter.
Adopting the approach adopted by the trial judge in the second judgment in the passage (at para. 23) quoted above, I am also coerced to the conclusion that the variations sought by the Minister, which modify, and indeed fundamentally change, from an overall perspective both the legal nature and duration of the sentence imposed by the sentencing State, in totally eliminating the release on licence in the community component of the sentence, required the making of an adaptation order in 2006 and cannot be dealt with by means of an order to vary the warrant under s. 9(1) many years after the transfer has taken place. Further, reiterating the observations made above (at para. 242), which even question whether such a variation could be achieved on an adaptation order under s. 7, in my view, it is appropriate to conclude that the High Court did not have jurisdiction under s. 9 to make the variations which the Minister was seeking.
Underlying that conclusion is the fundamental premise that it is the provisions of the Amended Act of 1995 which give effect to the provisions of the Convention in the manner in which the Oireachtas saw fit to give effect to them. Nonetheless, I think it is prudent to consider the provisions of the Convention to assess whether the existence of s. 9, in order to enable a variation order of the type sought by the Minister to be made, is necessary to give overall effect to the Convention or to any specific provision of it. Alternatively, is the existence of s. 9 necessary for some other purpose to be achieved in order to give effect to the provisions of the Convention? It must be emphasised that in conducting this exercise what are pertinent are the provisions to which the Oireachtas has chosen to give effect and the manner in which it has given effect to them in the Amended Act of 1995, insofar as they impose obligations on an administering State which takes a transfer in.
Not having made provision in law for it, the State has excluded the application of the conversion of sentence procedure, which is an available alternative to the continued enforcement procedure, both of which are provided for in Article 9.1 of the Convention, as it was entitled to do in accordance with Article 3.3 thereof. Accordingly, only the continued enforcement procedure, including the entitlement to adapt in accordance with Article 10.2, is available to the State in relation to the transfer into, and the detention in the State, of the Respondents. By virtue of Article 9.3, which is quoted later, the enforcement of the sentence by the State is governed by the law of the State, as “administering State”, and the State alone is competent to take all appropriate decisions. In relation to the Respondents, the adaptation procedure was not availed of, as it could have been, and, therefore, in accordance with the provisions of the Convention, continued enforcement takes effect as provided for in Article 10.1 in accordance with s. 7(4). There is nothing in the Convention which suggests that, not having implemented the adaptation procedure in accordance with the law of the State, an alternative option open to the State is to vary the nature and duration of the sentence years after the transfer into this jurisdiction has been effected. That being the case, the question which arises is how could it be contended that such a variation, which has the effect of eliminating one of the components of the sentence, is appropriate in order to give effect to the provisions of the Convention. In my view, it is not appropriate.
There are, however, other provisions of the Convention which point to the necessity for a provision such as s. 9 for other purposes. The provision of the Convention which appears to be of most relevance to the existence of s. 9 is Article 12, which is headed “Pardon, amnesty, commutation” and provides:
Each Party may grant pardon, amnesty or commutation of the sentence in accordance with its Constitution or other laws.
As regards a transfer into the State, that Article and the possibility of a subsequent pardon or amnesty, seems to be reflected in s. 7(8) of the Amended Act of 1995, which provides:
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.
Another provision of the Convention which may also be of relevance is Article 13, which provides that the sentencing State alone shall have the right to decide on any application for review of the judgment. Obviously, if the Respondents had been pardoned in accordance with the law of the sentencing State, that is to say, the law of England and Wales, while still being detained in Portlaoise Prison on foot of the warrants issued on 28th July, 2006, it would be appropriate for the Minister to apply for, and for the High Court to grant, an order revoking those warrants, to enable the Respondents to be released in accordance with the pardon. Similarly, if, while being detained in prison in this jurisdiction, the sentences imposed on the Respondents were commuted in accordance with the law of the sentencing State, that is to say, the law of England and Wales, it would be appropriate for the Minister to apply for, and for the High Court to grant, an order varying the existing orders in a manner consistent with the commutation. In short, in my view, it is reasonable to surmise that it was those types of situations which were in contemplation by the Oireachtas in making provision for the revocation of a warrant, where s. 7(8) would be applicable, or the variation of a warrant in accordance with s. 9.
Another type of situation which may have been in contemplation by the Oireachtas is a situation where for some unforeseeable reason it has been necessary that the sentenced person, who can no longer be detained in the place specified in the warrant, be transferred to a different place of detention. Varying the warrant in those circumstances to provide for detention in another prison would be appropriate in order to give effect to the provisions of the Convention. Similarly, the Oireachtas may have anticipated the type of error which occurred on each of the warrants in relation to the Respondents – the misstatement of the commencement of each of the sentences. Varying the warrant to correct such a misstatement would clearly be appropriate to give effect to the provisions of the Convention. Accordingly, the consensus in the judgments that there is jurisdiction to vary the commencement date in the warrants in relation to the Respondents, in my view, is correct.
Taking all of the foregoing factors into account, I am satisfied that, other than the mistake in relation to the date of the commencement of the sentence, the High Court had no jurisdiction to vary any of the provisions of the warrants in the manner applied for by the Minister, which I reiterate would constitute a variation of the sentence imposed by the sentencing State, and the trial judge properly refused to accede to the Minister’s application under s. 9. Further I am satisfied that the trial judge was correct in concluding that the High Court was helpless to effect curative action which would be necessary to remedy the defective warrant under which Mr. O’Farrell was then being detained by the Governor in Portlaoise Prison. However, although, given that conclusion, I consider that the legal principle on the general application of Article 40 established in two authorities relied on by the Governor to secure the detention of the Respondents for the remainder of the sentence of eighteen years and eight months, has no application to the circumstances of the Respondents, nonetheless, I propose considering those authorities in the context of the Respondents’ position as of now.
Not only did counsel for the Governor submit that the warrants in relation to the Respondents should be varied to indicate that the term they should serve is eighteen years and eight months, subject to such remission or parole as they may earn or be granted during the course of that period, but it was also submitted on behalf of the Governor that this Court ought to issue new warrants for the arrest of the Respondents so that they may be taken into custody to serve the balance of the custodial sentences which would be reflected in the varied warrants. It was submitted that the Court not only has the inherent power, but is also under a duty, to order the re-arrest of the Respondents on fresh warrants, citing the decision of the Supreme Court in The State (Dillon) v Kelly  I.R. 174 (Dillon). That authority and a slightly earlier decision of the Supreme Court in The State (Brien) v Kelly  I.R. 69 (Brien) are referred to in the joint judgment of O’Donnell J. and Clarke J. in the context of a suggestion that the position of the Respondents on this appeal is akin to cases where a prisoner challenges a warrant transferring him or her from one prison to another, because the Respondents are persons whom it has been finally determined should be imprisoned and the only issue is where that imprisonment should take place. At a superficial level, that is factually the case, but at a more fundamental level, in my view, there is no analogy at all between the position of the Respondents and the position of the prosecutors in the Dillon and Brien cases. The position of the Respondents in relation to their transfer from a place of detention in England and Wales to a place of detention in the State is governed by the provisions of the Amended Act of 1995 interpreted, as far as possible, in accordance with the provisions of the Convention.
That there is no such analogy can be illustrated by reference to the case of Brien. In April 1966 Brien was sentenced by the Circuit Court judge to three years detention in St. Patrick’s Institution having pleaded guilty to certain charges against him. While he was in St. Patrick’s Institution, in August 1966 the Minister for Justice, pursuant to a statutory power vested in him, made an order that Brien be transferred to Portlaoise Prison and that order was implemented. The Supreme Court held that the Minister’s order was in excess of the authority which the relevant statutory powers conferred on him and, accordingly, that order was quashed. However, as is clear from the passage from the judgment of Ó Dálaigh C.J. quoted in the joint judgment of O’Donnell J. and Clarke J. (at para. 63 above), the Supreme Court made it clear that the result was that Brien would be released from his custody in Portlaoise, but that was not to say that he should be at liberty. Ó Dálaigh C.J. pointed out that there was a valid court order sentencing him to three years detention in St. Patrick’s Institution and that he must serve out the balance of that sentence, and that the Supreme Court was prepared to order that he be taken to St. Patrick’s Institution to complete the sentence of three years detention imposed upon him by the Circuit Court.
What might colloquially be referred to as the redeeming feature in the Brien case was the existence of the underlying valid court order at the relevant time which imposed the sentence of detention in St. Patrick’s Institution. Likewise, in the Dillon case, there was a valid underlying warrant of the Court of Criminal Appeal on which Dillon’s re-arrest could be based, notwithstanding that the transfer order under which he was then held in a prison was invalid. The reason, in my view, why the logic of the decisions in Brien and Dillon cannot be applied on these appeals is because there is no underlying valid order of a court in this jurisdiction on the basis of which the Respondents may be re-arrested and be lodged in Portlaoise Prison for the balance of the sentence of eighteen years and eight months. I reach that conclusion on the basis of what I consider to be the correct interpretation of s. 7(4), which has been quoted earlier. On the authority of Dillon and Brien, if, in respect of each Respondent, there was an underlying order of the High Court authorising the issuance of an non-defective warrant for the detention of each for eighteen years and eight months, notwithstanding that each of the warrants issued by the High Court on 28th July, 2006 was defective, a correct warrant could be issued to replace each of the defective warrants. In those circumstances, by virtue of s. 7(4), each of the replacement warrants would have the same effect as the warrant of the High Court imposing a sentence following conviction by that court. However, there is no such underlying order of the High Court in respect of any of the Respondents.
Moreover, for the following reasons:
that the sentence imposed on the Respondents cannot now be adapted under s. 7 and that the Court has no inherent jurisdiction to adapt the sentences; and
that s. 9 does not confer jurisdiction to vary the warrants in the manner sought by the Minister;
no jurisdiction exists at this point in time which might be deployed to create valid warrants which would reflect the power conferred on the Court by s. 7(4), namely, to authorise the “continued enforcement of the sentence .... in its legal nature and duration”.
The sentence imposed on each of the Respondents by the Court of the sentencing State, in my view, cannot be treated by a court in this jurisdiction after the implementation of the transfer as “a valid court order” in the sense that the underlying order of the Circuit Court in the Brien case was held by the Supreme Court to be “a valid court order sentencing him to three years detention in St. Patricks”. Apart from the following factors:
that the order of the Court imposing sentences on each of the Respondents is not an order of a court of this jurisdiction; and
that, on the proper interpretation of s. 7, the warrants issued by order of the High Court made on 28th July, 2006 cannot be regarded as being of “the same force and effect as a warrant imposing a sentence following conviction” by the High Court;
which are crucial factors, nonetheless, it is helpful to consider the status of the order of the court imposing the sentences, that is to say, the Court of England and Wales, as between the sentencing State and this State, as administering State, under the Convention.
Article 8 of the Convention sets out the effect of transfer for the sentencing State and provides:
Further, in accordance with Article 9.3, the enforcement of the sentence is now governed by the law of this jurisdiction. That Article provides:
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.
Under the law of the State, the Amended Act of 1995, in the circumstances which exist on these appeals the State has no jurisdiction to rectify the mistakes made in July 2006. The State, having taken the Respondents in charge in accordance with the order of the High Court and the warrants dated 28th July, 2006, and the State not having implemented the adaptation procedure, and there being no legal route under Irish law by virtue of which the legal nature or duration of the sentence can be re-defined in this jurisdiction now, the State’s power of enforcement of the sentences is exhausted.
What was proposed by the Minister on the application to vary in the High Court, which counsel for the Respondents characterised as an attempt to seek an adaptation order by the back door, is not a solution to the problem created by the failure to seek an adaptation order in 2006, which was permissible under the Amended Act of 1995. The fundamental point is that the power conferred on the High Court to vary “one or more of the provisions of the warrant” does not authorise the High Court to vary either the legal nature or the duration of the sentence imposed by the sentencing State, irrespective of the implications of that solution not being available for the sentencing State or the administering State.
In summary, in view of the failure, in the course of the legal process governed by the Amended Act of 1995 authorising the transfer of the Respondents into the State in July 2006 to have the sentences adapted, unfortunately, there is no legal basis for giving force and effect to the sentences imposed on the Respondents by the sentencing State, England and Wales, at this juncture. In particular, there is no legal basis for the issuing of warrants for the re-arrest of the Respondents to serve the remainder of the sentences of eighteen years and eight months.
Having found that the warrants cannot now be adapted under s. 7 or under the Court’s inherent jurisdiction, or varied in the manner which the Minister seeks under s. 9 of the Amended Act of 1995, there is no procedure available by virtue of which they can be amended. Accordingly, the trial judge was correct in ordering the release of each of the Respondents. That being the case, the order I would propose should be made is an order dismissing the Governor’s appeal.
For the avoidance of doubt, being conscious of the existence of the plenary proceedings, no view is expressed in this judgment on the application of the Respondents to vary the first judgment of the trial judge, which was delivered on 26th August, 2014, refusing to release each of the Respondents at that time under Article 40.4.2°, on the ground that it was erroneous.
all rights reserved