The High Court adjourned an Article 40 inquiry into Fintan Paul O’Farrell’s detention at Portlaoise Prison after finding that the warrant relied on to hold him misstated the legal duration of his sentence. The court gave the Minister an opportunity to apply to vary the warrant and said the inquiry would resume after that application was resolved, if made.
Mr O’Farrell was sentenced in England and Wales in 2002 to 30 years’ imprisonment for terrorism offences. The Court of Appeal reduced the sentence to 28 years in 2005. A High Court warrant issued in July 2006 to facilitate his transfer to Ireland recorded a 28-year sentence beginning on 7 May 2002. The judgment said the English sentencing order had instead backdated the sentence to his arrest in Slovakia on 5 July 2001, a detail the Irish warrant did not adequately record.
The court considered the warrant in light of the Supreme Court’s 2014 decision in *Sweeney v Governor of Loughan House Open Centre*. Under the sentencing rules applicable to Mr O’Farrell, the English sentence entitled him to release on licence after serving two-thirds of the term. Applying *Sweeney*, Mr Justice Hogan concluded that the sentence’s period of actual imprisonment was approximately 18 years and eight months, rather than 28 years. He said the sentence should more properly have been adapted under the Transfer of Sentenced Persons Act 1995 because the English system of automatic release differed from Ireland’s remission arrangements.
The judge held that the warrant was defective in recording the sentence as 28 years and in failing to properly record its commencement. The errors were serious and might have contributed to Mr O’Farrell spending longer in custody than the sentencing court intended. An affidavit from the Irish Prison Service identified 24 October 2016 as his scheduled release date, more than five years earlier than the date previously contemplated.
However, the judge placed the defects in an intermediate category. The warrant contained substantial details about the offences and sentences, so the flaws did not yet invalidate it to the point that release had to be ordered immediately. Relying by analogy on *Miller v Governor of Midlands Prison*, he adjourned the Article 40 inquiry for a short period—days or weeks—to allow the Minister, if she chose, to apply on notice to Mr O’Farrell to vary the warrant under section 9(1)(b) of the 1995 Act.
The court expressed no concluded view on whether a variation could or should be made. If no variation order were made, it said it would have no alternative but to order Mr O’Farrell’s release. Separate constitutional challenges to the transfer procedure and section 7 of the Act remained adjourned pending resolution of this issue.