The Court of Appeal has dismissed M.Mc.K.’s appeal over the refusal of his request to transfer from the United Kingdom to Ireland, affirming the High Court’s refusal to grant leave to seek judicial review.
The judgment, delivered by Mr Justice Gerard Hogan on 25 April 2018, concerned a Ministerial decision made on 16 December 2015. The applicant, identified in the judgment as Mr M., is an Irish national who had lived in the UK since 1995. He was convicted there in August 2009 of serious sexual offences against his daughter and step-daughter and received an indeterminate sentence for public protection, with an initial eight-year tariff subject to review by UK parole authorities.
The Minister gave two main reasons for refusing the transfer request. The IPP sentence was unknown to Irish law and would require adaptation by the High Court. The Minister considered that an eight-year sentence might be the only adaptation that would avoid increasing the sentence, and noted that this was shorter than the 16-year minimum the UK sentencing judge considered appropriate for a determinate sentence. The Minister also cited rehabilitation concerns, saying the applicant denied the offences and was therefore unlikely to be considered suitable for placement at Arbour Hill Prison, the national centre for rehabilitating sexual offenders.
The applicant argued that the Minister had fettered her discretion and had improperly predicted how the High Court would adapt the sentence. The Court of Appeal held that the Transfer of Sentenced Persons Act gives the Minister discretion over whether to consent to a transfer. It also considered the difficulties in adapting UK sentences under the Act, including the differences between UK automatic release rules and Irish remission arrangements.
The court concluded that the Minister had considered this application individually and provided detailed reasons that were bona fide, factually sustainable and not unreasonable. It found no arguable grounds meeting the required threshold for leave to seek judicial review, affirmed the High Court decision and dismissed the appeal.
The ruling did not determine the sentence that would apply if a transfer were approved. The court discussed eight years as a likely adaptation in light of earlier cases, with the possibility of standard 25% remission, but no transfer or sentence-adaptation order was made in this appeal.