High Court: Minister’s ‘remarkable’ submissions rejected, mentally ill man entitled to consideration of transfer

High Court: Minister’s 'remarkable' submissions rejected, mentally ill man entitled to consideration of transfer

Andrew McKeown BL

The High Court had ruled that a German man suffering from schizophrenia who is detained in Ireland is entitled to be considered for transfer to a secure hospital in Germany.


The man, identified as S, who moved to Ireland in 2014, was tried before the Circuit Criminal Court for dangerous driving causing death. The jury returned a special verdict that S was not guilty by reason of insanity pursuant to the Criminal Law (Insanity) Act 2006 s.5(1), and he was detained in the Central Mental Hospital.

S wished to be transferred to an institution in Germany to be close to his family. He also wanted to avail of therapies for his mental illness in his native language. An appropriate secure psychiatric institution was identified, and the clinical director signalled his willingness to treat S. He confirmed that they would provide detention facilities, treatment and reviews comparable to those which S would receive in Ireland. The German Ambassador to Ireland wrote to the Minister for Justice (the Minister) in support of the transfer application, reiterating the benefit that the transfer would have on S, and confirming that the secure psychiatric institution in Germany would be ready to accommodate him.

Solicitors acting for S made a detailed submission in application for the transfer under the Transfer of Sentenced Persons Act 1995. There was an inordinate delay on the State’s part, and it did not reply to these detailed submissions until May 2020, eighteen months later. The State refused his application.

S instituted judicial review proceedings, and was represented by Feichín McDonagh SC with Julia Fox BL instructed by Duncan Grehan & Partners. The Minister was represented by Robert Barron SC and Michael Hourican BL instructed by the Chief State Solicitor.

All parties agreed that it would be in S’s best interests that he be transferred, and also agreed that he is eligible for transfer under the Transfer of Sentenced Persons Convention (the Convention). The dispute between the parties centred on whether the Convention had been properly implemented into Irish law. The Minister “remarkably” invited the court to adopt a restrictive approach to the interpretation of the domestic legislation, with the consequence that S would be rendered ineligible for transfer. The Minister argued that, as a result of the Criminal Law (Insanity) Act 2006’s introduction, Irish law was no longer fully compliant with the Convention.

The fact the Minister argued that the domestic legislation should be given a restrictive interpretation was, Mr Justice Garrett Simons said, “all the more surprising given that the adequacy of the Irish State’s legislative regime governing the transfer of sentenced persons is to be the subject of infringement proceedings.” The European Commission has publicly announced its decision to refer Ireland to the European Court of Justice for failing to transpose Council Framework Decision 2008/909/JHA of 27 November 2008, which replaced the corresponding provisions of the Convention with effect from December 2011 insofar as transfers between EU Member States are concerned.

The Minister contended that S could not be regarded as having been deprived of his liberty “on account of the commission of an offence” because S was found “not guilty” of the offence, albeit by reason of insanity. That argument was “sensibly” not pursued at hearing. The Criminal Law (Insanity) Act 2006 s.5(1) provides that the jury must find that the accused person had “committed” the act alleged against him or her before returning a special verdict to the effect that the accused person ought not to be held responsible for the act alleged because they were suffering at the time from a mental disorder. The concept of the “commission” of an offence for the purposes of the Transfer of Sentenced Persons Act 1995 should be read consistently with that concept of an accused person having “committed” the act. In each instance, the judge said, it refers to the carrying out of the actus reus.

The Minister accepted that a person detained under the previous legislative scheme would have been eligible for transfer as a “sentenced person” under domestic law, submitting that the introduction of the Act, which was intended to ensure compliance with the European Convention on Human Rights Art.5 (as interpreted in Winterwerp v The Netherlands [1979] ECHR 6301/73), resulted in non-compliance with the Convention on the Transfer of Sentenced Persons.

Mr Justice Simons referred to the judgment of Mr Justice William McKechnie in C.M. v Minister for Health and Children [2017] IESC 76, where he emphasised that, under the literal approach to interpretation, the intention of the Oireachtas is to be determined by reference to the ordinary and natural meaning of the words or phrases, having regard to both the proximate and general context in which they occur. Crilly v T. & J. Farrington Ltd [2001] 3 IR 251 noted that the well-established principle of statutory interpretation that regard should be had to the meaning of the underlying international instrument when interpreting domestic legislation which is intended to give effect to same.

In Sweeney v Governor of Loughan House Open Centre [2014] 2 IR 732, Mr Justice Frank Clarke held (specifically on the Transfer of Sentenced Persons Act 1995) that, in seeking to interpret Irish statutes enacted to comply with obligations under international treaties, “the courts will strive, if possible, to ensure that Irish implementing legislation is interpreted in a manner consistent with the international law obligations undertaken by Ireland by entering into the treaty concerned…”

Mr Justice Simons said that the relevant provisions of the Transfer of Sentenced Persons Act 1995 could be interpreted in conformity with the Convention “without having to go much beyond the literal meaning (if at all)”. The phrase “on account of the commission of an offence” included circumstances where a person has been deprived of their liberty in accordance with the Criminal Law (Insanity) Act 2006 s.5. The judge said the same result was reached by reference to the Framework Decision on the Transfer of Prisoners (Council Framework Decision 2008/909/JHA of 27 November 2008).


The interpretation urged upon the court by the Minister would render the domestic legislation inconsistent with the requirements of both the Convention and the Framework Decision. “More fundamentally”, it would be contrary to the interpretative obligation imposed upon a national court by EU law (Case C-105/03, Pupino). The judge held that the Minister’s decision to refuse the application was erroneous in law, and that S was entitled to have his transfer considered under the Act.

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