The High Court found that the Minister for Justice had not shown whether, or how, he considered a prisoner’s family rights when refusing a request to transfer him from Ireland to the UK. The court did not decide whether the refusal was ultimately reasonable and reserved its final order for a further hearing at the parties’ request.
In a judgment delivered on 30 July 2012, Ms Justice Iseult O’Malley said a transfer request made to be closer to family could engage the right to respect for family life under Article 8 of the European Convention on Human Rights. A refusal therefore required justification under the Convention criteria.
The applicant, British national Clive Butcher, had been convicted of manslaughter after being acquitted of murder. He was sentenced in April 2010 to six and a half years in prison, running from 19 December 2008. In September 2010 he applied to serve the remainder of his sentence in the UK, citing visits from his elderly mother and family. UK authorities agreed to accept him, but said he would be released on licence at the halfway point of the remaining sentence, under the continued-enforcement procedure.
The Minister refused the application in June 2011, citing the serious nature of the offence and the reduction in time Butcher would serve in the UK. The Minister later repeated those reasons to Butcher’s solicitor. The solicitor argued that the refusal lacked an explanation of why transfer had been denied. In the judicial review, Butcher alleged that the Minister had applied incorrect criteria and failed to consider his rights. The Minister denied the claims and argued that the transfer decision was discretionary and that the likely reduction in time served could be considered.
Justice O’Malley said meeting the statutory criteria did not create an entitlement to transfer. However, the evidence did not show what material the Minister had considered or whether he balanced Butcher’s family interests against the public interest in upholding the Irish sentence. The Minister’s case that the application contained too little evidence to engage Article 8 suggested that the family-rights issue had not been considered, the judge said.
The judge noted that the application form allowed little space for personal circumstances and that the Minister could have sought further information. Butcher’s stated reason for seeking transfer—to be closer to his mother—was enough to alert the Minister that family rights were being raised. Although UK authorities could not guarantee placement near his family, their best efforts were more likely to place him closer to Essex than Irish authorities, the judgment said.
The court concluded that the decision had not been shown to give sufficient consideration to a relevant factor and was not made within the spirit and intent of the transfer legislation. It made no finding on whether the refusal itself was reasonable and did not determine the suggested justification for an Article 8 interference. The final order remained to be decided after further submissions.