Cillian Bracken graduated from UCC with a BCL (Law and German) degree in 2014. Since graduating he has worked in an extensive range of legal research roles in the areas of public and corporate law. In this letter, Cillian Bracken explores the recent developments in the superior courts of the Transfer of Sentenced Persons Convention for the law of Habeas Corpus in Ireland and its potential implications. For the fully referenced version of this letter, please click here.
Despite a dearth of coverage, the law regarding Habeas Corpus in Ireland with reference to one of the most successful international treaties of the Council of Europe, the Convention on the Transfer of Sentenced Persons (TOSP), is undergoing significant litigation at the moment, potentially with the capacity to affect application of the Convention and its relevant domestic Irish legislation, the Transfer of Sentenced Persons Act 1995 (as amended by the Transfer of Sentenced Persons Act 1997), on the transfer of prisoners between Ireland and elsewhere, most significantly the country with the largest number of Irish expatriates and closest Irish ties, the United Kingdom.
Some background; on 21 March 1983 TOSP was opened for signature by the European Committee on Crime Problems, the committee within the Council of Europe entrusted with the overseeing and coordinating of the Council’s activities in the field of crime prevention and crime control. Its purpose was, and still is, as referenced by TOSP’s preamble to ‘achieve a greater unity between [the Council of Europe’s] members’, ‘develop international co-operation in the field of crime law’ and ‘require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society.’ Essentially TOSP allows a person sentenced in a contracting State to be transferred to their home country to serve the whole of their sentence or the remaining part thereof. This is a noble enough intention allowing those imprisoned abroad to serve their time near their families.
Ireland duly signed TOSP in 1986 and then ratified the convention and passed it into domestic law via the 1995 Act. TOSP currently has 64 contracting States, including all the members of the Council of Europe barring Monaco, as well as the USA, Australia, Israel and Canada amongst others.
The criteria necessary to be fulfilled for a transfer remains reasonably straightforward: the sentenced person in question must be a national of the ‘administering State’, that is the State the person is to be transferred to; the judgment is final; at least 6 months remain to be served on the sentence; the person consents to the transfer; the act for which the sentence was imposed constitutes a criminal offence according to the law of the administrating State; and both the administrating State and the ‘sentencing State’, that is the State who imposed the original sentence, consent to it. Section 1(1) of the 1995 Act defines ‘sentence’ as being ‘any punishment or measure involving deprivation of liberty ordered by a court or tribunal …’. Sections 7(4) and (5) of the act serve to translate the sentence, either allowing for the continuance of the sentenced imposed by the sentencing State, or the adaptation of 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’ respectively.
Notwithstanding the current issues to be discussed, TOSP and the Act remain functioning and integral parts of our modern criminal legislative framework; in 2013 alone 14 applications for transfer were received by the Department of Justice, with 12 from the UK, up from 6 UK applications in 2012.
The current TOSP difficulties arose in Sweeney v Governor of Loughan House Open Centre & Ors  IESC 42. On 7 December 2006, Vincent Sweeney was convicted of serious drug offences in the UK and sentenced to 16 years of which, pursuant to the UK Criminal Justice Act 2003, one half would be served in custody and one half would be served ‘on licence in the community’, a system that does not exist in Irish criminal law and it is upon this point that the issue hinges. On 16 December 2008, upon his consent, he was transferred under the 1995 Act to serve the remainder of his sentence in Ireland, on the basis of a warrant issued by the High Court on 22 October 2008, which by way of judicial review he wished to have declared ultra vires the act through the action. Sweeney contended that the sentence imposed by the English court should be understood as comprising two halves; 8 years in custody and 8 years on licence in the community at liberty, and so Ireland, on the basis of the act and TOSP, could only administer a custodial sentence of 8 years as only this falls within section 1(1) of the Act as well as the fact that such a system does not exist in Ireland, and as such 29 March 2014 should be considered the expiry of his sentence.
Counsel for the respondent argued the semantic point was that the sentence imposed by the English court was one of 16 years imprisonment, which the State was obliged under the terms of TOSP and the act to enforce. However the 16 years was subject to the Irish system of 25% remission for good behaviour and so the appellant could potentially be liable for release on 12 December 2016. The respondents underlined that Article 10 TOSP requires that ‘the administering state shall be bound by the legal nature and duration of the sentence as determined by the sentencing state.’ It was further argued that the appellant had consented to serving the remainder of his 16 year sentence, and had been informed of this prior to transfer.
Murray J in his judgment came to the decision that the appellant was liable only for the 8 year custodial sentence on the basis that the descriptive terms of the sentence imposed clearly made a difference between the custodial and the licenced sentences and occurred by operation of law and not by virtue of remission. He also placed great weight on the interpretation of section 1(1).
Interestingly, the court did not discuss the implications for Anglo-Irish relations with reference to the act, given the potential consequences due to the political nature of a large number of Irish nationals imprisoned in the UK. Although alluded to by both judges, somewhat surprisingly a more in-depth examination of the analogy between a suspended sentence and a sentence under licence does not seem to have been analysed, however as both Clarke and Murray JJ discussed the possibility of a section 7(5) adaption, and that the 1995 Act concerns itself only with the custodial sentence this question may be unnecessary to examine. The implications of this are clear – a person sentenced to 16 years in the UK could well end up serving only 6 years in Ireland including 25% Irish remission, a possibility not discounted by the judgment. (As an aside this could even possibly be less given the decision in Ryan v Governor of Midlands Prison  IEHC 338 which ruled that there existed no reason why the higher one third rate of remission within order 59.2 of the Prison Rules 2007 shouldn’t apply in appropriate circumstances. Although this was overturned on appeal to the Supreme Court on the basis of misapplication by way of Article 40 procedure in Ryan v Governor of Midlands Prison  IESC 54 it still leaves the door potentially open for a correct application).
Most recently the Sweeney decision has again come to light in the Habeas Corpus Article 40.4.2˚ application in O’Farrell v Governor of Portlaoise Prison  IEHC 416 and O’Farrell v Governor of Portlaoise Prison [No 2]  IEHC 420. Here the appellant and two others were convicted of terrorism offences after travelling to Slovakia to buy weapons and explosives from agents whom they believed to be Iraqi arms dealers for the Real IRA but were in fact British security forces. They were sentenced to 28 years after extradition to the UK in 2002 under the Terrorism Act 2000 and were then transferred to Ireland on the basis of a warrant of the High Court on 28 July 2006 for the same 28 year sentence under the 1995 Act. Notably the appellant was convicted prior to the UK Criminal Justice Act 2003 and he would have been required to serve a two-third custodial sentence, and a third under licence, rather than the current two halves system. In the first action, Hogan J held that there was a defect on the face of the warrant in following the ratio of the Supreme Court in Sweeney and that the proper sentence was one of 18 years and 7 months and then adjourned the case for the respondent to apply to vary the section 7 order pursuant to section 9(1)(b) of the amending 1997 Act to properly reflect the sentence and amend the defective warrant, and reserved his judgment as to whether the court had jurisdiction to exercise variation of said warrant . In the second action, ordering the release of the appellant forthwith, through detailed examination of the legislative framework, Hogan J did critically note that the sentence could well have been adapted to fit Irish law under section 7(5) of the 1995 act rather than being continued as it was under section 7(4) of the same. He goes as far as to explicitly enunciate how the sentence could have been adapted, but is, as he says, ‘helpless to effect the curative action which would be necessary to remedy the defective warrant’.
By taking the Sweeney and O’Farrell decisions together, one can clearly see the consequentialism. It would be unfair to blame the courts for giving effect to the legislation rather than the State for not correctly adapting the sentences but, without the benefit of hindsight, the current result is that prisoners sentenced in the UK, and quite possibly elsewhere given the nuance of country-by-country criminal law, are not serving all of what was originally believed to be their sentences, whether by only serving the custodial sentence they are or are not fulfilling the original intended sentence handed down by the English or Welsh judge remains unclear. Many questions still surround whether or not the UK would originally have consented given the political nature of many of those transferred, or even would the State itself have consented. There is no doubt the State is now on notice to adapt the sentence of future applications accordingly, but given there are no hard figures as to how many people are affected by the Sweeney decision, future releases are most certainly not precluded. The issue of whether or not the UK will continue to consent to transfers remains to be seen, or prospectively if prisoners would be dissuaded from applying for transfer on the basis of how the State could adapt the custodial sentence without licence, nevertheless is it a quandary which shall be very interesting to follow as the jurisprudence develops in coming months.
Is mise le meas,
Cillian Bracken BCL (Law and German)