Ireland’s Supreme Court dismissed the Minister for Justice and Equality’s appeal against a High Court decision refusing to surrender a man to the United Kingdom under a European Arrest Warrant. The Court held that surrender would be incompatible with Ireland’s obligations under the European Convention on Human Rights because the man would be subject to an indeterminate sentence regime previously found to breach Article 5.1.
The UK authorities sought the surrender of Laurence Kelly, also known as Gavin Nolan. The warrant was issued on 5 October 2010. He was arrested in Ireland on 24 October 2011. The High Court heard the request in March 2012, refused surrender in May and discharged him from the proceedings. The Minister appealed on a certified question about whether the sentence the respondent was sought to serve was so contrary to the constitutional scheme and order that surrender had to be refused.
The Supreme Court judgment records that the respondent pleaded guilty at Harrow Crown Court to attempted rape and assault causing actual bodily harm, following an attack on a woman in Kilburn, London, in April 2005. He received a sentence comprising a two-and-a-half-year minimum term followed by an indeterminate sentence for public protection. Release after the minimum term depended on a Parole Board assessment that he no longer posed a risk to the public. The UK Court of Appeal changed the place where the imprisonment was to be served but left the two-part sentence in place.
After about four and a half years in detention, the respondent’s first Parole Board hearing did not recommend release. The judgment says he absconded while on temporary release after serving five years and three months.
The Supreme Court confined its consideration to whether surrender would breach the State’s Convention obligations under section 37(1)(a)(i) of the European Arrest Warrant Act 2003. It noted that the UK had since abolished indeterminate sentences for public protection, but that the replacement legislation did not apply retrospectively. The respondent would therefore remain subject to the former regime if surrendered.
Relying on the European Court of Human Rights’ decision in *James, Wells and Lee v the United Kingdom*, the Court said detention after the tariff period could be arbitrary and unlawful where prisoners were not progressed towards appropriate rehabilitative courses. It concluded that the former regime, as it applied to this respondent, amounted to a fundamental and systemic breach of the Convention. The Court dismissed the Minister’s appeal; the High Court’s refusal to surrender therefore remained in effect.