O’Farrell v Gov of Portlaoise: Supreme Court splits 4/3 for literal over purposive interpretation of s 9 of Transfer of Sentenced Persons Act

Prison2The Supreme Court split four to three in favour of a literal interpretation of s 9 of the Transfer of Sentenced Persons Act 1995 over a purposive interpretation. The Court held that it did not have the power under s 9 of the 1995 Act, or an inherent power of court, to vary the sentence listed on the warrants for the detention of three Real IRA prisoners transferred from England to serve the remainder of their sentence in Ireland.


In 2002, after guilty pleas to conspiracy to commit terrorist offences, an English court sentenced O’Farrell, McDonald and Rafferty to 30 years imprisonment, backdated to the time of their arrest in 2001. In July 2005, the Court of Appeal of England and Wales reduced those sentences to 28 years. In England, all sentences of imprisonment over a minimum threshold consist of two parts, a period of detention and the remaining period to be served in the community under supervision. At the time these sentences were imposed, the division was two thirds in custody and one third under supervision (a 50/50 division currently applies).

In August 2005, all three applied under the Transfer of Sentenced Persons Act 1995 to be transferred to Ireland to serve the remainder of their sentences. The 1995 Act implements the States obligations under the Council of Europe Convention on the Transfer of Sentenced Persons (link). The Convention is primarily a humanitarian measure to facilitate the social rehabilitation of prisoners in circumstances where they can have contact with their families.

A Department of Justice official wrote to the prisoners informing them that, if transferred, they would serve a longer period of detention, as the maximum period of remission in Ireland is 25%. The approximate release date, if transferred, being January 2022. Each of the prisoners wrote to the Minister accepting that condition as a consequence of their transfer. The Minister instituted proceedings under s 7 of the 1995 Act (link) to have the prisoners transferred to Ireland. In July 2006, the High Court issued the warrants for their transfer. The prisoners were transferred in September 2006. The warrants for their transfer stated the term of imprisonment for each as being 28 years from the date of their sentencing in 2002.

Under the Convention, a state can introduce either a measure to enforce the sentence imposed by the sentencing state or a judicial mechanism to convert the sentence to one under the administrating state’s domestic law. Because of constitutional concerns about sentencing prisoners for convictions in foreign courts, Ireland chose a mechanism of enforcing the sentence imposed by the sentencing state. Under s 7 of the 1995 Act, the High Court can adapt a sentence which is incompatible with Irish law because of duration or legal nature (before a prisoner is transferred). Under s 9 of the 1995 Act, the Minister may apply to the High Court to vary a warrant issued under s 7.

In 2014, the Supreme Court issued its judgment in Sweeney v Governor of Loughlan House [2014] IESC 42 (post) which held that the the period of supervised release in a sentence by a court of England and Wales is not compatible with Irish law. In that case, Sweeney was sentenced to 16 years imprisonment by an English court: eight years in detention followed by eight years under supervised release. Sweeney was transferred to Ireland under s 7 of the 1995 Act. Sweeney had served eight years and challenged his continued detention. The Supreme Court held that, as there was no facility in Ireland for supervised release, under Irish law his sentence was for eight years imprisonment and ordered his release.

Following the Sweeney decision, O’Farrell, McDonald and Rafferty issued Article 40.1 proceedings for their release, on grounds that the warrants for their detention were defective as they stated the periods of imprisonment to be 28 years. In the High Court, Hogan J held that the warrants wee defective (here). In a later judgment he held that the High Court did not have authority under s 9 to vary the warrants to cure the defect; Hogan J ordered the release of the prisoners (here). The State appealed to the Supreme Court. The prisoners cross appealed, claiming that Hogan J should have released them immediately on his finding that the warrants for detention were defective.

Supreme Court

A seven judge panel heard the appeal. All seven agreed that, as a result of the Court’s decision in Sweeney, the warrants were defective. The issue for determination was whether the warrants could be varied to record that, in Irish law, the sentences were for periods of just over 18 years (2/3s of 28) and to commence from the date of their arrest in 2001.

In a jointly written judgment (here) O’Donnell and Clarke (with Denham CJ concurring, here) stated that they would have allowed the State’s appeal. In their opinion, the case was comparable to State (Dillon) v Kelly [1970] IR 174 and State (Brien) v Kelly [1970] IR 69. In Brien, the Supreme Court held that the order for the Brien’s transfer to Portlaoise by ministerial order was defective but refused to order his release as there was a valid order for his detention in St Patrick’s Institute. O’Donnell and Clarke looked at the purpose of the Convention, which they stated to be humanitarian, to provide for the transfer of prisoners to their home country to be close to their families. They held the view that, even though the warrants were defective, there was a valid order from the English courts for the prisoners’ detention. They also stated the view that s 9 permits variation which gives effect to the Convention [8.14]. They would have permitted a variation to the warrant which gave force to the custodial aspect of the English sentence but which allowed the non-custodial aspect to fall away.

The majority dismissed the State’s appeal. Laffoy J (here), with MacMenamin J (here) and OMalley J concurring, held that s 9 conferred jurisdiction on the High Court to vary one or more of the provisions of the warrants, not to vary the nature or duration of the sentence [47]. The sentences imposed by the English court were for 28 years, subject to automatic release after two thirds had been served. She agreed with the High Court that what the Minister was seeking to vary goes to the nature and duration of the sentence. That should have been done by the adaption process prior to transfer [51]. She stated:

On a literal interpretation of s 9, an order “varying” one or more of the provisions of the warrant means an order changing or altering one or more provisions of the warrant. [52] … Adopting the approach adopted by the trial judge in the second judgment in the passage (at para. 23) quoted above, I am also coerced to the conclusion that the variations sought by the Minister, which modify, and indeed fundamentally change, from an overall perspective both the legal nature and duration of the sentence imposed by the sentencing State, in totally eliminating the release on licence in the community component of the sentence, required the making of an adaptation order in 2006 and cannot be dealt with by means of an order to vary the warrant under s 9(1) many years after the transfer has taken place [53].

McKechnie J wrote a judgment (here), concurring with MacMenamin J, Laffoy J and O’Malley J, dismissing the State’s appeal.

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