Challenge to Minister’s refusal to allow sex offender sentence transfer found to be unarguable

The High Court has found that an applicant’s challenge of a decision by the Minister for Justice and Equality, in which she refused to allow him to transfer his sentence from the UK to Ireland, was unarguable, as the Minister was not obliged to accept such transfers, and had not acted unreasonably in her refusal.

The applicant had moved to the UK from Ireland on 5th May 1995. In the UK he was charged with a number sexual crimes perpetrated against his daughter and step daughter.

In 2009 he was convicted and given a term of life imprisonment by way of an indeterminate sentence for public protection, with a minimum of 8 years on a rape count, and 6 years concurrently on the other counts.

In 2010 he informally requested that he be allowed to return to Ireland to serve his sentence there, this was followed by a formal request from the UK Minister of Justice and the applicant in 2011.

On 11 May 2015 he instituted judicial review proceedings with a view to obtaining mandamus against the Minister, requiring her to make a decision on the transfer. When she refused his application, he brought a case reviewing her decision.

Mr Justice Humphreys noted that G. v. D.P.P. 1 I.R. 374 at 377 to 378, Finlay C.J. sets out the criteria for the grant of an ex parte application for leave as being:

  1. That the applicant “has a sufficient interest in the matter to which the application relates”;
  2. That “an arguable case in law can be made that the applicant is entitled to the relief which he seeks”;
  3. That the application has been made within the appropriate time limit;
  4. That judicial review was the only, or most appropriate method of achieving a remedy;
  5. That there are no other grounds to warrant refusal of leave.
  6. He noted that the real argument in the present case was whether an arguable case had been made out.

    He explained that a claim would not be arguable if it was clearly wrong (Agrama v. Minister for Justice and Equality IECA 72) or if the point had already been decided.

    A claim was not to be considered arguable merely because it required debate and consideration (Duffy v. Clare County Council IEHC 51; Kelly v. Flanagan IEHC 378), nor was an arguable ground to be determined by quantity of submissions, affidavits and time required to deal with the matter (O’Mahony Developments v. An Bord Pleanala IEHC 757; R. v Local Government Commission for England ex p. North Yorkshire County Council (unreported, High Court (Queen’s Bench Division), 11th March, 1994); R. v. London Docklands Development Corporation ex p. Frost 73 P. & C.R. 199).

    In relation to the Minister’s refusal, it was noted that there were two main arguments.

    The first was that the sentence of indefinite imprisonment for public protection is unknown to Irish law, and therefore, transfer would require an application to the High Court to adapt the sentence.

    As the only sentence that could be given without aggravation of the duration of the sentence would be eight years, this would be significantly less than the UK judge considered to be appropriate.

    In addition to that difficulty, the Minister noted that “it would not be consistent with the promotion of social rehabilitation to transfer your client to Ireland in circumstances in which he denies the offence”. This denial would be considered to be “a very negative factor in attempts to rehabilitate him”, and would make it unlikely that he would be considered suitable to be held in Arbour Hill Prison, the national centre of excellence for rehabilitating sexual offenders.

    The Judge noted that under s6(3) of the Transfer of Sentenced Persons Act 1995 and the relevant case law (Butcher v. Minister for Justice and Equality 4 I.R. 401; Nascimento v. Minister for Justice, Equality and Law Reform 1 I.R. 1), the Minister had discretion as to whether to consent to an application for transfer into the State, and was not obliged to consent.

    It was argued for the applicant that the Minister had made a finding in law, which was arguably incorrect and therefore a matter for the court.

    However, the Court found that the Minister was not making a finding of law when she formed a decision as to the likely adapted sentence, she was merely expressing a view.

    The appropriate test was therefore reasonableness, rather than a non-deferential standard, as found in Nash v. Minister for Justice 3 I.R. 296 at 310 to 311 where Kearns J stated that the Minister must act “reasonably and within the spirit and intent of the Act. Once the does that and exercises his discretion in a manner which is not unreasonable in the sense of being irrational, or without material to sustain same, then that decision should not be set aside except for compelling reasons”.

    This finding meant that the argument made on behalf of the applicant, that the Minister had come to a conclusion that was meant for the court, was not arguable, as she had not done so.

    Similarly, the argument that the Minister was wrong in stating that the only corresponding sentence was eight years was unarguable.

    The Court observed that even if some other possibility was established (which had not been done), this did not even arguably have the consequence that the Minister’s finding was unreasonable.

    The argument was also put forward that the Minister’s decision to refuse the application because of the applicant’s denial of guilt was unreasonable.

    However, the Court found that not only was it not unreasonable, it appeared to be correct.

    The UK sentence still provided incentives for rehabilitation, even in cases where the applicant denied the offences, as it required him to apply to a parole board for release.

    The same was not true in Ireland, and the original sentence therefore maximised the potential for public protection in the way that an adapted determinate sentence in Ireland could not.

    The applicant further argued that the Minister had taken irrelevant matters into consideration, in speculating as to whether the applicant’s daughter would visit him.

    However, the Court found that:

    “Judicial review is not an exercise where an electron microscope can be applied to every detail of the decision in the hope of locating something which can be improved upon. If the core of the decision is sound in law, some minor slip at the periphery of the discussion does not even arguably invalidate it.”

    It followed that the applicant had failed to make out an arguable case to challenge the Minister’s decision, and that even if the judge was incorrect on that point, at least one of the central pillars of the decision were sufficient to sustain the refusal, and the applicant had not shown that both were wrong.

    • by Rachel Killean for Irish Legal News
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