The High Court has ordered the release of a man from Portlaoise Prison after finding that a defective warrant could not establish that his detention was lawful.
In a supplementary judgment delivered on 11 September 2014, Mr Justice Hogan ruled that the court could correct the warrant’s error about when the sentence began, but had no jurisdiction to make the separate adaptation needed to give the English sentence effect under Irish law after the prisoner had been transferred.
The applicant had been sentenced by Woolwich Crown Court in 2002 to 30 years’ imprisonment. The Court of Appeal of England and Wales reduced the sentence to 28 years in 2005. The judgment said the sentence was backdated to 5 July 2001, when he entered custody in Slovakia. But the Irish transfer warrant gave the start date as 7 May 2002, an error the parties agreed should be corrected.
The judge said that date could be changed through a variation order under section 9 of the Transfer of Sentenced Persons Act 1995. However, the sentence’s nature and duration raised a different issue. Under the English regime described in the judgment, the prisoner was entitled to automatic release after serving a portion of the sentence. Irish law instead provided for remission for good behaviour. The judge concluded that the English sentence needed to be adapted under section 7(5) to reflect an equivalent sentence under Irish law.
The judgment also noted that the corresponding offence in Ireland carried a maximum sentence of 20 years, below the 28-year sentence imposed in England and Wales. The judge said the statutory power to adapt a sentence could only be exercised when the transfer warrant was first sought, before the prisoner was transferred. The court therefore could not make the required adaptation at this later stage, and a variation order could not substitute for it.
Mr Justice Hogan had adjourned the Article 40.4.2 inquiry while the Minister sought to vary the warrant. He concluded that the warrant remained materially defective and that the respondent could not show the detention was lawful. The order was to release the applicant under Article 40.4.2. The judgment does not state any further order concerning the sentence or the applicant’s custody in another jurisdiction.