The Supreme Court dismissed the Governor of Portlaoise Prison’s appeals concerning the release of three men whose transfers from England and Wales to Ireland had been authorised by warrants the Court found defective.
In a judgment delivered by Ms Justice Laffoy on 12 July 2016, the Court agreed that the warrants could not now be adapted under section 7 of the Transfer of Sentenced Persons Act 1995, as amended, or varied under section 9 in the manner sought by the Minister for Justice and Equality. The appeal concerned whether the High Court had power to change the warrants after the men had been transferred to Ireland.
The men had been sentenced in England and Wales before the UK Criminal Justice Act 2003 took effect. Their sentences included imprisonment for two-thirds of the term and release on licence in the community for the remaining third, with the possibility of recall. In 2006, the High Court issued warrants for their transfer to Ireland. No application was made at that time to adapt the duration of the sentences, and the warrants did not provide for adaptation of their legal nature.
The Court said the warrants were defective. It agreed that the High Court could not make a post-transfer adaptation order: the statutory power to adapt the duration of a sentence had to be invoked when the original warrant application was made. The Court also agreed that there was no inherent jurisdiction to adapt the sentences later.
The Minister subsequently applied to vary the warrants. The Supreme Court accepted that section 9 could permit corrections such as the commencement-date error in the warrants, but held that it did not authorise the fundamental changes sought. Those changes would have removed the licence component of the sentences and altered their nature and duration, which required adaptation rather than variation.
The Governor argued that the men could be re-arrested on fresh warrants to serve the remaining custodial period. Laffoy J rejected that argument, finding no underlying valid Irish court order authorising their detention on that basis. The Court concluded that no legal basis remained for enforcing the sentences in Ireland and upheld the High Court’s orders directing the men’s release.
The judgment addressed only the appeals before the Court. It expressed no view on the men’s application in separate plenary proceedings to vary an earlier High Court judgment that had refused their release at that stage.