Supreme Court rules against the State in appeal over the release of dissident republicans

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Fintan O’Farrell, Declan Rafferty, and Michael McDonald, all from Louth, had travelled to Slovakia in 2001 for the purposes of purchasing very substantial quantities of arms and explosives for an organisation styling itself the Irish Republican Army or Real IRA.

In 2002, all three respondents pleaded guilty before the English courts to terrorist offences including conspiracy to cause explosions.

They were sentenced to terms of imprisonment of 30 years, later reduced on appeal to 28 years and commenced serving their prison terms in England.

In 2006, they availed of the Transfer of Sentenced Persons Acts, 1995 to 1997; two statutes were enacted by the Oireachtas to allow Irish prisoners in other jurisdictions to be transferred to serve out their sentences in Irish prisons.

An application was made to the High Court in 2006 for warrants to allow each respondent to be transferred to custody in Ireland, to be detained in Portlaoise Prison to serve the balance of their sentences.

The sentencing system which operates in England and Wales is appreciably different from that which obtains under Irish law; having regard to the relevant English law, the three men would automatically have been entitled to release on licence following completion of two-thirds of their sentences, i.e. 18 years and eight months. The Irish system does not allow for release on licence but provides for one-quarter remission.

The significance of these differences between the two sentencing regimes was at the heart of the Supreme Court’s decision in Sweeney v. Governor of Loughan House Open Centre IESC 42.

As a result of the decision in Sweeney, on the 19th June 2014, Justice Hogan in the High Court, directed an inquiry into the legality of the trio’s detention in Portlaoise Prison under the 2006 warrants, applying the principles identified in Sweeney.

Under Article 40.4 of the Constitution, Justice Hogan was obligated to “enquire into” the complaint that the prisoners were being unlawfully detained.

The application to the High Court was accompanied by a challenge to the constitutionality of section 7 of the Transfer of Sentenced Persons Acts, 1995-1997.

In two judgments consequent on the inquiry, in August and September 2014, Justice Hogan held the detention of the respondents was not in accordance with law, and directed their release.

In light of the conclusions reached on the Article 40.4 enquiry, Justice Hogan did not consider it necessary to proceed with the constitutional challenge.

Appealing Justice Hogan’s decision to release the men, the State’s appeal concerned the warrants issued pursuant to section 7 of the Transfer of Sentenced Persons Acts 1995-1997.

The warrants

The sentencing judge in England had indicated the sentences should take effect from the 5th July 2001, the date of the Slovakian arrests – whereas the warrants issued pursuant to section 7 of the acts of 1995 to 1997 stated that the ‘commencement date’ of the sentences was 7th May 2002.

In addition the warrant included the recorded sentence of ‘28 years imprisonment’ for conspiracy to cause explosions.

In the high court, it was found that the warrant “incorrectly” recorded that the sentence imposed was of 28 years, and were to that extent “defective”. The objective reality of the sentences should have had a true duration of approximately 18 years and 8 months, and that this term should have been recited in the warrant.

The question before the Supreme Court was whether pursuant to section 9 of the 1995 Transfer of Sentenced Persons Act, the court could “vary” the 2006 warrant issued by the High Court under section 7 of the Act so that the sentence imposed by the English courts could lawfully be modified.

All seven judges in the Supreme Court agreed the detention warrants were defective and that the sentences in those warrants could not be retrospectively adapted under section 7 of the Transfer of Sentenced Persons Act, however they disagreed whether the sentences could be varied under section 9 of the Act.

The majority comprised Judges McKechnie, MacMenamin, Laffoy and O’Malley while the minority comprised Chief Justice Denham and Judges Clarke and O’Donnell.

In dismissing the appeals, Justice MacMenamin concluded that the process whereby the respondents were placed in detention in Ireland was fundamentally defective and the warrants were void ab initio. Neither section 9 of the Act, nor the inherent jurisdiction of the Court, can be invoked to cure the jurisdictional deficiencies fundamental in these cases.