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Cite as: [1997] IEHC 43

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Duffin v. Minister for Justice [1997] IEHC 43 (28th February, 1997)

THE HIGH COURT
JUDICIAL REVIEW
J.R. 243/96
BETWEEN
HUGH G DUFFIN
APPLICANT
AND
THE MINISTER FOR JUSTICE
RESPONDENT

Judgment delivered the 28th day of February, 1997 by Carney J.

1. On the 25th day of April, 1995 the Applicant pleaded guilty before Wexford Circuit Court to the unlawful importation of a controlled drug and was sentenced to a term of 10 years imprisonment, the sentence to run from the 21st day of December, 1994 with four years of the sentence suspended on terms.

2. On the 1st November, 1995 the Transfer of Sentenced Persons Act, 1995 took effect. Almost immediately by letter to the Minister for Justice dated the 10th day of November, 1995 the Applicant applied under the provisions of the said statute for a transfer to a prison in Northern Ireland so that he could be close to his 84 year old father who was in ill health. More or less contemporaneously with the Applicant's request, the Minister upon the commencement of the material legislation received 28 other applications for transfers to 6 jurisdictions both European and North American to serve out sentences ranging from 22 months to life imprisonment.

3. The Applicant received a response to his application on February 13th, 1996 in the following terms:-


"I wish to refer further to your application for a transfer to a prison in the United Kingdom under the provisions of the Transfer of Sentenced Persons Act, 1995, to serve out the remainder of your sentence.

The position is that, under the terms of the Convention on the Transfer of Sentenced Persons, the provisions of the Transfer of Sentenced Persons Act, 1995 came into effect on 1 November, 1995 between Ireland and the other contracting parties, including the U.K.. Consequently, it only became possible to formally receive and process requests for transfers from that date.

I can confirm that your application for a transfer is being processed. As you will appreciate, the authorities of both jurisdictions are required to exchange extensive documentation to permit consideration of an application for a transfer. While every effort will be made to process your application as speedily as possible, it is likely to be some months before a transfer may be effected.

I should also point out that under the terms of the Convention three-way consent is required from the sentenced person and the authorities of both States. Once the U.K. authorities respond to your request you will receive a further letter from this office in this regard.

________________
John Lohan
Prisons Division
13/2/96".

4. On June 27th, 1996 the Prisons Division of the Department of Justice forwarded to HM Prison Service, H.Q. in the Northern Ireland office:-

(a) the Applicant's application for transfer,
(b) extensive supporting documentation which had to be assembled to enable the application to be processed further, and
(c) a request for further information which was required to enable this jurisdiction to participate in the three-way process of transfer. The information sought from the Northern Authorities was the following:-

"(i) a document or statement confirming that Mr. Duffin is a UK national or has close links with Northern Ireland for the purpose of the Convention;
(ii) a copy of the relevant law which provides that the offence for which the prisoner is in custody in Ireland would constitute a criminal offence if committed in your jurisdiction;
(iii) a statement regarding the continued enforcement of Mr. Duffin's sentence in your jurisdiction."

5. This information which is clearly necessary for the operation of a prisoner transfer under the Council of Europe Convention on the transfer of sentenced persons done at Strasbourg on the 21st day of March, 1993 has not yet been furnished to the Department of Justice by the Northern Ireland Authorities.

6. On the 8th day of October, 1996 the Applicant obtained from Kinlen J. an Order giving him leave to seek Judicial Review by way of Mandamus reviewing the Minister's dealing with his application from the stand point of delay. It would appear from the primary ruling of Kinlen J. that he was not aware of the Minister's letter of June 27th, 1996 to the Northern Ireland Authorities. Kinlen J. in making his Primary Order was accordingly unaware:-

(a) that some activity had been taking place in this jurisdiction in relation to the processing of the Applicant's request and,
(b) that essential information was outstanding from the Northern Ireland Authorities.

7. The Applicant complains in the first instance of delay in the processing of his application between the 10th day of November, 1995 and the 27th day of June, 1996.

8. The Minister in November 1996 was faced with the implementation of a new jurisdiction of considerable complexity. Immediately upon the coming into force of the legislation transfers were sought by 28 other prisoners to 6 jurisdictions in two continents.

9. The documentation which required to be assembled in respect of the Applicant (as well as 28 others at the same time) included the following:-

"1. Mr. Duffin's request for a transfer to a prison in Northern Ireland and two recent photographs of him.
2. Order of Imprisonment.
3. Copy of relevant legislation.
4. Garda Report on the circumstances of the offence.
5. Governor's Report on offender's conduct while in custody.
6. Probation and Welfare Reports.
7. Details of sentence served to date.
8. Certificate from Mr. Sean Aylward, Principal Officer, Prisons Division authenticating all documents provided in support of Mr. Duffin's application."

10. The preparation of these documents required various enquiries to be made. To take just one example the preparation of the Probation and Welfare Reports required that the Probation and Welfare Officer at Mountjoy Prison make enquiries of her opposite number in Belfast which would have initiated the preparation of a Home Circumstances Report on a person and address in Belfast. No doubt the probation service in Northern Ireland is subject to the same pressures and demands as the probation service in this jurisdiction.

11. Having regard to the fact that the Minister already in charge of a Department of State subject to great pressure was faced with a complicated new jurisdiction being invoked at its foundation by 29 prisoners contemporaneously and involving extensive enquiries both inside and outside the jurisdiction, I do not find the delay between November and June to be unconscionable.

12. Since June 1996 the processing of the Applicant's application has been held up by information being outstanding from Northern Ireland. It is not appropriate for this Court to enquire into or comment on the processing of the Applicant's case in Northern Ireland.

13. In perusing documentation emanating from the prison services in both jurisdictions I detect a will to facilitate the Applicant and I have no doubt that he will shortly receive his transfer without the intervention of this Court. In the meantime, his application must be refused.

© 1997 Irish High Court

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URL: http://www.bailii.org/ie/cases/IEHC/1997/43.html