The Supreme Court has ordered warrants for three prisoners at Portlaoise to be varied to reflect the custodial part of their English sentences, calculated as 18 years and eight months less qualifying time served and Irish remission.
The connected appeals concerned Fintan O’Farrell, Michael Christopher McDonald and Declan John Rafferty, who were serving sentences in Ireland after being transferred from England. The warrants issued in 2006 recorded 28-year sentences but did not account for the English legal regime under which one third of those terms was served on licence in the community.
The prisoners had been convicted in England of offences including conspiracy to cause explosions and terrorism-related offences. Their original 30-year sentences were reduced on appeal to 28 years. Before consenting to transfer, they were told that Irish remission was normally one quarter, compared with one third in England, and were given an estimated Irish release date of January 2022.
In 2014, the High Court found defects in the warrants and, after concluding that it could not adapt the sentences at that stage, directed the prisoners’ release. The Governor appealed. The Supreme Court considered whether the prisoners could challenge the warrants despite having sought transfer, whether the warrants were defective, and whether the defects could be corrected.
The Court held that the warrants were defective because a governor could not determine the authorised period of custody from the documents and Irish prison rules alone. The earlier Supreme Court decision in *Sweeney* had established that, for the relevant English sentencing regime, the 28-year terms comprised 18 years and eight months in prison and nine years and four months on licence. Irish law could not enforce the licence period without adaptation.
The Court rejected the argument that the defect required immediate release. It held that the Minister could apply under section 9 of the Transfer of Sentenced Persons Act 1995 to vary a warrant so it reflected the enforceable custodial part of the sentence. Variation of the warrant was distinct from adapting the foreign sentence, which the Court was not asked to do.
The Supreme Court ordered the warrants varied to provide for imprisonment for a period calculated by taking 18 years and eight months and deducting time served in England and Ireland, with remission earned in Ireland also taken into account. The judgment does not set out individual recalculated release dates. It allowed the Governor’s appeal on the issue of variation, displacing the High Court’s conclusion that the warrants could not be cured at that stage.