Supreme Court finds UK life sentencing unconstitutional, but grants European Arrest Warrant
The Supreme Court has upheld a decision to surrender a man who had been sentenced in the UK to life imprisonment in 1984 for the murder of his neighbour back to the UK, finding that while the UK system with regards to life sentences would be unconstitutional in Ireland, it did not justify Ireland refusing to comply with European Arrest Warrants (EAW).
In 2011, Mr Michael Anthony Balmer was released on license, but in 2012 this license was revoked. In the meantime, Mr Balmer had become resident in Ireland, and a EAW was issued for his arrest, which was executed in June 2013.
He objected to his surrender on grounds that the surrender would contravene the Irish Constitution, as his return would be to serve a sentence which would be purely preventative in nature.
Further, he argued that the return would contravene the Constitution and be incompatible with the State’s obligation under the European Court of Human Rights in that the UK’s procedures did not provide for any hearing before a licence was revoked and a person recalled to custody.
The High Court rejected his arguments and ordered his surrender, relying on Caffrey v. Governor of Portlaoise Prison 1 I.R. 637, and distinguishing Minister for Justice and Equality v. Nolan I.E.H.C. 249.
In Caffrey, the majority of the Supreme Court found that a sentence for the purposes of prevention could be administered in accordance with Irish law. In Nolan, the Supreme Court had refused to grant a EAW, finding that the UK system of imprisonment for public protection was in violation of the ECHR.
The High Court’s decision was upheld by the Court of Appeal, and in 2015 the Court allowed an appeal on the following points:
Whether the State could enforce a remaining element of a sentence which is ostensibly for prevention or deterrence in conformity with Article 40.3 and 40.4 of the Constitution.
To what extent is it necessary to have a hearing prior to recalling a prisoner released on license into custody in order to conform with Article 40.4 of the Constitution and Article 5 of the European Convention on Human Rights.
The Court noted that the case law showed clearly that it was undesirable and inappropriate of the Court to scrutinise foreign laws by reference to Irish Constitutional standards.
O’Donnell J observed that this did not mean that the case could be disposed of by the simple proposition that the Constitution only had relevance to matters within the jurisdiction.
However, the concept that some, or perhaps all, of the provisions of the Irish Constitution apply to actions occurring abroad, and are limited only by considerations of practicability of enforcement, was found to be troubling, and was not accepted as being sufficiently grounded in the text of the Constitution.
Irish constitutional law was found to distinguish between events occurring abroad and those occurring in Ireland, not merely because they do occur abroad, and therefore, are observed rather than controlled by Irish law but because they are controlled by the law of a foreign sovereign state.
O’Donnell J noted that the “comity of courts is not merely a matter of politeness between lawyers, or an end in itself: it is an aspect of the relationship between sovereign states.”
It was not a case of the Irish Constitution controlling events abroad it was rather that the Irish court was observing events abroad.
Moreover, those events were observed through the lens of Article 29 of the Constitution, requiring friendly cooperation, and Articles 1 and 5, which, in asserting sovereignty, require the respect of the sovereignty of other countries.
It was only in cases of “egregious” breaches of fundamental principles of the Constitution that a refusal of surrender or return should be made, or when something was so proximate a consequence of the court’s order and so offensive to the Constitution as to require a refusal.
It was therefore necessary to look closer at the sentencing regime in the UK and to consider the constitutional law on preventative detention within Ireland.
It was observed that the person found guilty of murder in the UK must be sentenced by the court to life imprisonment. On sentencing, the judge sets the minimum period of detention.
The prisoner must be released if, after that period, a parole board directs his release. The board can only direct release if satisfied that detention is no longer necessary for protection of the public.
If released, the former prisoner remains on licence and may be recalled to serve the balance of the sentence. Any such recall is either recommended by the parole board or must be referred to the parole board. References to tariffs and punitive periods of imprisonment are not statutory terms.
This was found to diverge from Irish law, in particular in relation to the management of the sentence. However, the sentences in both jurisdictions remain a life sentence, and the Irish regime does provide for consideration of risk to the public both on sentence and in consideration of continued detention.
O’Donnell J therefore found that they two systems were very similar, but that as risk to the public cannot be the sole object in sentencing and release, he was prepared to approach the case on the basis that the introduction in Ireland of a regime similar to that in the UK would not be permissible under the Irish Constitution.
The fundamental and difficult issue for an Irish court is whether that difference, and putative unconstitutionality, is so egregious, and such a fundamental defect in the legal system, or is something which departs “so markedly from the scheme and order envisaged by the Constitution” as to require a court to refuse to surrender a person under an EAW.
O’Donnell J disagreed with the High Court and Court of Appeal on their finding that the case of Caffrey was dispositive of this case, finding that Caffrey does not conclude that a UK sentence as managed in that jurisdiction is compatible with the Constitution.
However, he found that the regime did not require a refusal to surrender, as it did not constitute a fundamental defect in the justice system.
He observed that “Unlike the Irish Constitution, the ECHR applies with full force in the requesting state. The only question, therefore, for the requested court, is whether the requesting state will comply with its own obligations under the Convention.”
“Furthermore, the Irish court is entitled to apply a presumption that the national court of the requesting state is best placed to make a determination as to compatibility, at least in the first place.”
“It follows from the discussion above that it is possible for this State to surrender, in accordance with the EAW, a person sentenced in another jurisdiction to a life sentence who has served a portion of that sentence described colloquially as consisting of the entirety of the punitive element of the sentence. In relation to the second issue, it is not necessary to speculate on what is required in the abstract. The Court is satisfied that the provision of information and the capability to review or appeal a decision to recall, both of which apply in this case, are sufficient to comply with any requirement of fair procedures under either the Constitution or the Convention.”