S. v Minister for Justice (Transfer Of Sentenced Person) (Approved) (Rev 2) [2020] IEHC 632 (11 December 2020)

NO FURTHER REDACTION REQUIRED

APPROVED

[2020] IEHC 632

THE HIGH COURT

JUDICIAL REVIEW

2020 No. 462 J.R.

BETWEEN

APPLICANT

AND

MINISTER FOR JUSTICE

RESPONDENT

DIRECTOR OF THE CENTRAL MENTAL HOSPITAL

NOTICE PARTY

JUDGMENT of Mr. Justice Garrett Simons delivered on 11 December 2020

INTRODUCTION

1. The principal question for determination in these proceedings is as follows. Can

a person who is detained in the Central Mental Hospital following a special

verdict of "not guilty by reason of insanity" be characterised as a "sentenced

person" for the purposes of the Transfer of Sentenced Persons Act 1995. If the

answer to this question is "yes", then such a person is eligible to be transferred

to another Convention State in order to serve the balance of their "sentence" (as

defined).

2. The applicant had been tried for an offence of dangerous driving causing death,

and the jury returned a special verdict to the effect that the applicant was not

guilty by reason of insanity. The applicant is currently detained in the Central

Mental Hospital. The parties are all in agreement that it would be in the best

interests of the applicant were he to be transferred to his home country of

Germany. The parties are also agreed that the applicant is eligible for transfer

under the terms of the Transfer of Sentenced Persons Convention itself ("the

Convention").

3. The dispute between the parties centres on whether the Convention has been

properly implemented into domestic law. Remarkably, the Minister for Justice

invites this court to adopt a restrictive approach to the interpretation of the

domestic legislation, with the consequence that the applicant would be rendered

ineligible for transfer. The logic of the position adopted by the Minister is that,

as a result of legislative amendments introduced in 2006, domestic law is no

longer fully compliant with the Convention.

4. The Minister's submission that the domestic legislation should be given a

restrictive interpretation is 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. More specifically, 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. The Framework Decision replaced the

corresponding provisions of the Convention with effect from 5 December 2011

insofar as transfers between Member States of the European Union are

concerned.

FACTUAL BACKGROUND

5. The applicant had been charged with an offence of dangerous driving causing

death, and was tried before a judge and jury in the Circuit Criminal Court. The

jury returned a special verdict, finding the applicant not guilty by reason of

insanity pursuant to section 5(1) of the Criminal Law (Insanity) Act 2006.

Relevantly, such a special verdict entails a finding by the jury that the accused

person committed the act alleged against them but that they ought not to be held

responsible for the act because they were suffering at the time from a mental

disorder.

6. Thereafter, the trial judge made a finding, in accordance with section 5(2) of the

Act, that the applicant was suffering from a mental disorder (as defined), and

required in-patient care and treatment. (The applicant has a diagnosis of

schizophrenia). The trial judge then made an order committing the applicant to

a specified designated centre, namely the Central Mental Hospital.

7. As required under section 13 of the Act, the applicant has been subject to

periodic reviews by the Mental Health (Criminal Law) Review Board. On each

occasion, the Review Board's decision was that the applicant still fulfilled the

criteria for detention, and the board ordered that his detention continue pending

further review.

8. The applicant is a German national, and had moved to Ireland in 2014. The

applicant is married, with one child. His wife remains supportive but has had to

move back to Switzerland with their child for her employment. The applicant's

mother is very elderly and resides in Germany. She is unable to travel due to her

ill health.

9. The applicant wishes to be transferred to an institution in Germany so that he

can be close to his family. The applicant also wishes to avail of therapies for his

mental illness in his native language.

10. An appropriate secure psychiatric institution in Germany has been identified,

and the clinical director of that institution has confirmed his willingness to treat

the applicant. The clinical director has also confirmed that this institution would

provide detention facilities, treatment and reviews comparable to those which

the applicant would receive in Ireland.

11. The German Ambassador to Ireland has written to the Minister for Justice in

support of the transfer application, reiterating the benefit that the transfer would

have on the applicant, a German citizen; and confirming that the secure

psychiatric institution in Germany would be ready to accommodate the

applicant.

12. A formal application for a transfer was made to the (then) Minister for Justice

on 3 December 2018. An initial response to the application was received from

the Irish Prisons Service on 17 December 2018 as follows.

"I have received confirmation from the management of the

Central Mental Hospital that [the applicant] is not a prisoner,

and hence, the provisions of the Transfer of Sentenced

Persons legislation do not apply to him. As you point out in

your letter he is detained under Section 5(2) of the Criminal

Law (Insanity) Act 2006. He has to date never been in the

custody of the Irish Prison Service.

There is no legal provision for inter European interstate

transfer of patients detained under the Criminal Law

(Insanity) Act 2006."

13. The solicitors acting for the applicant made a detailed submission in response to

this letter the very next day, setting out their rationale for saying that the Transfer

of Sentenced Persons Act 1995 is applicable.

14. There then ensued what can only be described as an inordinate delay on the part

of the State agencies in progressing the application. Despite regular reminders,

by letter and telephone, a substantive response was not received by the

applicant's solicitors until 5 May 2020, that is, some eighteen months

subsequent to the making of the transfer application.

15. Following a further exchange of correspondence, the reasons for the Minister's

refusal to entertain the transfer application were set out as follows in a letter

dated 10 June 2020. This letter is again from the Irish Prison Services.

"I refer to your recent correspondence regarding your client

[Name redacted]'s unsuccessful application to transfer to

Germany under the provisions of the Transfer of Sentenced

Persons Act. In light of advises received, the following

summary outlines the reasons why the Minister does not

have the statutory power to issue a transfer warrant.

Background

Criminal Law Insanity Act 2006

Prior to the enactment of the 2006 legislation a person who

pleaded insanity successfully would be found `guilty but

insane' and remanded indefinitely to the Central Mental

Hospital, however under the provisions of the Criminal Law

(Insanity) Act, 2006 the accused person is not automatically

committed to a mental hospital on foot of successfully

pleading insanity. When the plea is successful, the verdict

has now changed to `Not guilty but insane'.

The consequences of this amendment is that a person cannot

be remanded in some form of custody, rather the legislation

in Section 5(2) of the 2006 Act empowers the judge to

commit the person to the custody of `a specified designated

centre' only where the judge is satisfied that the person is

suffering from a mental disorder and is in need of in-patient

care and treatment. If the judge is not satisfied that the

subject meets either of these criteria he cannot commit the

subject to a relevant mental hospital.

Transfer of Sentence Persons Act 1995 & 1997

The 1995 Act definition of a Sentence ends with the words

`on account of the commission of an offence'.

It is the view of Senior Counsel that within the definition of

the 1995 Act that an accused person found not `guilty but

insane, who is committed by the judge to the Central Mental

Hospital, is not subject to a `sentence' for 2 reasons. Firstly,

he or she has been found not guilty and therefore has not been

detained `on account of the commission of an offence'.

Secondly, the reasons and the only reasons for the committal

of the person is that he or she suffers from a mental disorder

and is in need of inpatient care or treatment.

Having giving (sic) due consideration `to all the information

and legal advice received, it was recommended that this

application is refused as Senior Counsel are of the view that

the Minister does not have the statutory power to issue a

transfer warrant because the Transfer of Sentenced Persons

legislation does not apply to a person committed to a

specified designated centre under Section 5(2) of the

Criminal Law (Insanity) Act, 2006 as amended by the

Criminal Law (Insanity) Act 2010."

PROCEDURAL HISTORY

16. The applicant instituted these judicial review proceedings by way of an ex parte

application for leave on 20 July 2020. The judicial review proceedings came on

for hearing before me on 3 December 2020. Counsel for all sides made

admirably crisp and concise submissions. The parties were given liberty to file

supplemental written submissions on the principles governing the interpretation

of domestic legislation which gives effect to international instruments, such as

the Convention on the Transfer of Sentenced Persons. The applicant's side, in

their supplemental submissions, very helpfully referred me to a relevant

Supreme Court authority, Sweeney v. Governor of Loughan House Open Centre

[2014] IESC 42; [2014] 2 I.R. 732. I will return to discuss this judgment at

paragraph 56 below.

CONVENTION ON THE TRANSFER OF SENTENCED PERSONS

17. The Irish State ratified the Convention on the Transfer of Sentenced Persons on

31 July 1995.

18. The recitals to the Convention provide that foreigners who are deprived of their

liberty as a result of their commission of a criminal offence should be given the

opportunity to serve their sentences within their own society, and that this aim

can best be achieved by having them transferred to their own countries.

19. The term "sentence" is defined as follows.

"`sentence' means any punishment or measure involving

deprivation of liberty ordered by a court for a limited or

unlimited period of time on account of a criminal offence"

20. Relevantly, the Convention distinguishes between (i) the commission of a

criminal offence, i.e. in the sense of the carrying out of the acts or omissions

making up the offence, and (ii) the concept of criminal responsibility. This arises

under Article 9 in the context of the transfer of persons, who for reasons of

mental condition, have been held not criminally responsible for the commission

of the offence.

21. The Irish State, by way of declaration, has indicated the procedure which it will

follow in the case of such persons.

"In accordance with the provisions of Article 9, paragraph 4,

Ireland may apply the Convention to persons detained in

hospitals or other institutions under orders made in the

course of the exercise by courts and tribunals of their

criminal jurisdiction."

22. There is no doubt, therefore, that a person who has been held not criminally

responsible for the commission of an offence, but is detained in an institution

under an order made by a criminal court, can apply for transfer into the Irish

State. It is also accepted by the Minister that such a person is eligible for transfer

out of the Irish State.

23. Thus, the parties in the present case are all agreed that, under the terms of the

Convention itself, the applicant is eligible for transfer notwithstanding that, as a

result of the special verdict, he has not been found criminally responsible.

Counsel for the Minister accepts that it is sufficient for the purposes of the

Convention that the applicant had "committed", i.e. carried out, the act alleged

against him, namely dangerous driving causing death. Counsel expressly stated

that it is sufficient that an accused person has carried out the actus reus of the

offence.

COUNCIL FRAMEWORK DECISION 2008/909/JHA

24. The written legal submissions filed on behalf of the applicant also make brief

reference to a framework decision adopted by the European Council in 2008.

The full title of the framework decision is as follows: Council Framework

Decision 2008/909/JHA of 27 November 2008 on the application of the principle

of mutual recognition to judgments in criminal matters imposing custodial

sentences or measures involving deprivation of liberty for the purpose of their

enforcement in the European Union. For ease of reference, this instrument will

be referred to hereinafter as "the Framework Decision on the Transfer of

Prisoners" or simply "the Framework Decision".

25. The Framework Decision replaces the corresponding provisions of the

Convention on the Transfer of Sentence Persons in respect of transfers between

Member States, with effect from 5 December 2011. (See Article 26 of the

Framework Decision). The Convention continues to govern the relationship

between a Member State and a third State.

26. As with the Convention which it replaces, one of the principal objectives of the

Framework Decision is to facilitate the social rehabilitation of convicted persons

by allowing them to serve their sentence in their home country.

27. The definition of "sentence" under the Framework Decision reads as follows.

"`sentence' shall mean any custodial sentence or any

measure involving deprivation of liberty imposed for a

limited or unlimited period of time on account of a criminal

offence on the basis of criminal proceedings"

28. The European Commission has published a handbook on the transfer of

sentenced persons and custodial sentences in the European Union to facilitate

and simplify the daily work of designated competent authorities.

(C:2019:403:TOC). The handbook expressly addresses the position of persons

who have been found not to have criminal accountability as follows.

2. 1.2.

Ratione materiae

With a view to facilitating the social rehabilitation of the

sentenced person, the Framework Decision covers any

custodial sentence or any measure involving deprivation of

liberty imposed for a limited or unlimited period of time on

account of a criminal offence on the basis of criminal

proceedings (Article 1(b)).

As is clear from the definition, any judgment, following

criminal proceedings on account of a criminal offence, and

resulting in a deprivation of liberty, may be forwarded under

the Framework Decision. This means that decisions

imposing internment following the establishment of the

offender's full or partial criminal unaccountability due to a

mental disability (see recital 20) are included in the

definition used in the instrument.

In addition, so-called combined sentences where the

judicial authority has deemed it necessary to impose a

combination of a custodial measure together with another

measure involving deprivation of liberty, such as psychiatric

treatment are covered by the Framework Decision."

29. As appears, it is not necessary that a person have been found to have criminal

accountability in order for them to be eligible for transfer under the Framework

Decision.

30. The Irish State has not yet transposed the Framework Decision. The Minister

did, however, publish the general scheme of the Criminal Justice (Mutual

Recognition of Custodial Sentences) Bill 2020 in July 2020.

31. The European Commission has publicly announced its decision to refer Ireland

to the European Court of Justice for failing to transpose the Framework Decision.

TRANSFER OF SENTENCED PERSONS ACT 1995

32. The Convention has been given effect to in domestic law by the Transfer of

Sentenced Persons Act 1995. It is evident from the Long Title of the Act that it

is intended to apply not only to convicted prisoners, but extends to persons

detained in hospitals or other institutions under orders made in the course of the

exercise by courts and tribunals of their criminal jurisdiction.

33. The term "sentence" is defined under section 1 as follows.

"`sentence' means any punishment or measure involving deprivation

of liberty ordered by a court or tribunal for a limited or unlimited

period of time on account of the commission of an offence;"

34. As appears, the wording differs slightly from that under the Convention itself in

that it includes the additional words "the commission of" in the final clause,

i.e. on account of the commission of an offence. As discussed under the next

heading, the Minister attaches much significance to this difference in wording.

35. It should also be noted that the definition under the domestic legislation omits

the word "criminal" from the phrase.

THE MINISTER'S POSITION

36. In her statement of opposition, the Minister maintains the position that the

applicant is not a "sentenced person". The Minister has also pleaded that the

Convention cannot assist in the interpretation of the terms "sentence" or

"sentenced person" because the Oireachtas, in enacting the Transfer of

Sentenced Persons Act 1995, has not adopted the meaning of "sentence"

provided for in the Convention.

37. In the written legal submissions filed on her behalf, the Minister contends that

the applicant cannot be regarded as having been deprived of his liberty "on

account of the commission of an offence" for two reasons. First, it is said that

the applicant has been found "not guilty" of the offence, albeit by reason of

insanity. Secondly, it is said that the applicant has not been deprived of his

liberty on account of the special verdict, but rather as a result of certain findings

made by the trial judge subsequently.

(i) No requirement for criminal responsibility

38. The argument underlying the first reason appears to be that the term "the

commission of an offence" entails a requirement for criminal responsibility.

Sensibly, this argument was not pursued at the hearing before me. Leading

counsel for the Minister very fairly accepted that this phrase refers merely to the

carrying out of the acts alleged against an accused (actus reus), in this instance,

dangerous driving causing death.

39. It is apparent from the wording of section 5(1) of the Criminal Law (Insanity)

Act 2006 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 the concept of an accused

person having "committed" the act alleged in the criminal proceedings for the

purposes of the Criminal Law (Insanity) Act 2006. In each instance, it refers to

the carrying out of the actus reus.

(ii). Meaning of "on account of the commission of an offence"

40. In order to understand the argument underlying the second reason relied upon by

the Minister, it is necessary to explain the procedure governing a special verdict

under the Criminal Law (Insanity) Act 2006.

41. The circumstances in which a person, who has been found not guilty by reason

of insanity, may be committed to the Central Mental Hospital are prescribed

under section 5 of the 2006 Act.

42. Subsections 5(1) and (2) provide as follows.

5. (1)

Where an accused person is tried for an offence and, in the

case of the District Court or Special Criminal Court, the court

or, in any other case, the jury finds that the accused person

committed the act alleged against him or her and, having

heard evidence relating to the mental condition of the

accused given by a consultant psychiatrist, finds that--

(a)

the accused person was suffering at the time from a

mental disorder, and

(b)

the mental disorder was such that the accused person

ought not to be held responsible for the act alleged

by reason of the fact that he or she--

(i) did not know the nature and quality of the act,

(ii) did not know that what he or she was doing was

wrong, or

(iii) was unable to refrain from committing the act,

the court or the jury, as the case may be, shall return a special

verdict to the effect that the accused person is not guilty by

reason of insanity.

(2)

If the court, having considered any report submitted to it in

accordance with subsection (3) and such other evidence as

may be adduced before it, is satisfied that an accused person

found not guilty by reason of insanity pursuant to subsection

(1) is suffering from a mental disorder (within the meaning

of the Act of 2001) and is in need of in-patient care or

treatment in a designated centre, the court shall commit that

person to a specified designated centre until an order is made

under section 13 or 13A."

43. Subsection 5(3) provides for the preparation of a report by an approved medical

officer, i.e. a consultant psychiatrist within the meaning of the Mental Health

Act 2001, setting out his or her opinion on whether the person the subject of the

special verdict is suffering from a mental disorder and is in need of in-patient

care or treatment.

44. The effect of these provisions is that a special verdict of "not guilty by reason of

insanity" does not automatically result in detention. Rather, the jurisdiction to

detain the person the subject of the special verdict is contingent on the trial judge

being satisfied that that person is suffering from a mental disorder (as defined),

and is in need of in-patient care or treatment in a designated centre.

45. The essence of the Minister's submission is that the applicant is detained on

account of the Circuit Criminal Court's finding that the applicant is suffering

from a mental disorder and is in need of in-patient care or treatment, rather than

"on account of the commission of an offence". (It will be recalled that the

decision-letter of 10 June 2020 states that the only reason for the committal of a

person under the 2006 Act is that he or she suffers from a mental disorder and is

in need of inpatient care or treatment (see paragraph 15 above)).

46. The submission is neatly encapsulated at §6.4 of the written legal submissions

as follows.

"It may be correct [...] that the Applicant would not have

been the subject of a measure involving deprivation of liberty

ordered by the Circuit Criminal Court for an unlimited period

of time under Section 5(2) of the 2006 Act unless he had been

tried for a criminal offence. However, it is respectfully

submitted that it is incorrect to suggest either that he would

not have been committed but for the trial or that the detention

was as a result of the trial or verdict. It is plain that no

detention can take place under Section 5(2) of the Act

without a finding that the person, the Applicant in this case,

is suffering from a mental disorder and is in need of inpatient

care or treatment."

(Emphasis in original).

47. This submission is then elaborated upon as follows. Attention is drawn to the

fact that there is a separate statutory procedure (under section 8 of the Mental

Health Act 2001) by which a person may be involuntarily admitted to an

approved centre on the grounds that he or she is suffering from a mental disorder.

This separate procedure is not contingent on a special verdict in a criminal trial.

It is acknowledged that this is not the basis on which the applicant is actually

detained.

48. The new legislative scheme introduced by the Criminal Law (Insanity) Act 2006

is contrasted with the previous scheme. In particular, attention is drawn to the

fact that under the Trial of Lunatics Acts 1883, the consequence of a special

verdict of guilty but insane was that the court shall order the accused to be kept

in custody as a criminal lunatic.

49. The point is also made in the written legal submissions that, prior to the

enactment of the Criminal Law (Insanity) Act 2006, the decision to release a

person who had been detained following a special verdict of "guilty but insane"

had resided with the executive branch of government. By contrast, the power to

release a person committed under the 2006 Act is conferred upon a newly

established independent statutory body, namely the Mental Health (Criminal

Law) Review Board. It is queried, at §11 of the written legal submissions,

whether the Minister has any power, express or implied, to make any direction

which results in the release of the applicant from detention. Sensibly, this point

was not pursued at the hearing before me.

50. The Minister fully accepts that a person who had been detained under the

legislative scheme in force prior to the enactment of the Criminal Law (Insanity)

Act 2006 would have been eligible for transfer as a "sentenced person" under

domestic law. The logic of the Minister's submission is, however, that the

reforms introduced in 2006 had the unarticulated consequence that domestic law

was rendered non-compliant with the Convention. Put otherwise, it is suggested

that the introduction of legislative reforms, which were intended to ensure

compliance with Article 5 of the European Convention on Human Rights (as

interpreted in Winterwerp v. The Netherlands [1979] ECHR 6301/73), resulted

in non-compliance with the Convention on the Transfer of Sentenced Persons.

It is not suggested that this was a deliberate legislative choice. Nevertheless, the

court is invited to interpret the Transfer of Sentenced Persons Act 1995 in a

manner which is non-compliant.

DISCUSSION

51. The principal issue for determination in this judgment is whether the applicant's

detention in the Central Mental Hospital can be said to be "on account of the

commission of an offence", within the meaning of that phrase as used in the

Transfer of Sentenced Persons Act 1995. Before turning to address this issue, it

is necessary first to identify the relevant rules of statutory interpretation.

52. A very useful statement of the modern approach to statutory interpretation is to

be found in the judgment of the Supreme Court in C.M. v. Minister for Health

and Children [2017] IESC 76. McKechnie J., speaking for the court,

emphasised that, under the literal approach to interpretation, the intention of

parliament 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. See paragraph 58 of the judgment as follows.

"Accordingly, a consideration of both the narrower and

broader context of any disputed provision, including the

subject matter of the legislation itself, is an integral part of

the literal approach, as is the legislative history, the subject

matter of the Act and, to use an almost obsolete phrase, the

`mischief' which was sought to be remedied by its

provisions. In identifying such matters, the same is not

intended, quite evidently, as a prescriptive ruling on this

approach."

53. McKechnie J. then described the purposive approach to interpretation as follows

(at paragraph 59).

"Where this method [i.e. the literal approach] does not yield

a sufficiently clear indication of parliament's intention, then

further assistance may be called upon by adopting one or

more of a range of options also available, including what is

sometimes referred to as a `purposive' approach, which

involves looking beyond the plain text of the statute and

considering the intended objective of the legislature and the

reason for the statute's enactment. As is made clear in

multiple court decisions going back very many years, where

the words are obscure or ambiguous, or their true meaning is

in doubt, such an approach is permissible [citations omitted].

Section 5 of the Interpretation Act 2005 now gives statutory

recognition to this course. [...]"

54. At an earlier point in the judgment (paragraph 56), McKechnie J. had noted the

absence of any clear, definitive and easily understood demarcation line between

the literal approach and the purposive approach. One possible explanation for

this is that the literal approach--in consequence of the requirement to have

regard to the overall context of legislative provisions--now shares much of the

territory previously occupied exclusively by the purposive approach.

55. I turn now to apply these principles to the present case. Irrespective of whether

one applies a literal or purposive approach, the objectives of the Convention on

the Transfer of Sentenced Persons undoubtedly form part of the "context" for

the interpretation of the Transfer of Sentenced Persons Act 1995. This is because

it is a 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. This principle is

summarised as follows by Murray J. in Crilly v. T. and J. Farrington Ltd

[2001] IESC 60; [2001] 3 IR 251 (at page 291 of the reported judgment).

"For a very long time principles of common law concerning

the interpretation of statutes which give effect to

international treaties permit the courts to interpret such a

statute in the light of the meaning of relevant provisions of

the treaty concerned. No doubt this is in part because the

intention of the national legislature is clear to give effect to

provisions of the treaty in domestic law and the objective

consequence of that intent can be clarified or ascertained,

where necessary, by reference to the meaning of the relevant

provisions of the treaty, itself a legal instrument. There is

also the consideration that contracting parties to international

agreements should seek, as far as possible, to give uniform

effect to its provision in domestic law. Furthermore, with

this latter objective in mind, international treaties are

interpreted in accordance with the principles of international

law according to which the travaux prepatoires may be

consulted for the purposes of their interpretation (unless such

an approach is excluded, expressly, or by implication by the

terms of the treaty itself or if there are no travaux

preparatoires available)."

56. This principle was relied upon in the specific context of the Transfer of

Sentenced Persons Act 1995 by the Supreme Court in Sweeney v. Governor of

Loughan House Open Centre [2014] IESC 42; [2014] 2 I.R. 732. Clarke J. (as

he then was) stated as follows (at page 753 of the reported judgment).

"[...] On the other hand, it is likewise well established that,

in seeking to interpret Irish statutes which have been put in

place so as to enable Ireland 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

(see, for example, H.I. v. M.G. (Child abduction: Wrongful

removal) [2000] 1 I.R. 110).

It follows that, in interpreting the Act of 1995, the courts

should endeavour, if possible, to give it a meaning which

conforms with Ireland's obligations under the Convention.

However, that is the only effect of the Convention on the

legal rights and obligations which arise in this case. The

Convention is not part of Irish law. There are no relevant

European Union measures which affect the rights and

obligations which arise in this case."

57. The import of the case law is that it is legitimate for a court, when called upon

to interpret domestic legislation which gives effect to an international

instrument, to look beyond a narrow literal interpretation. However, none of the

authorities opened by the parties expressly address the extent to which a court

may, if necessary, depart from the literal wording of domestic legislation in order

to give effect to the objectives of an international instrument. The judgment in

Sweeney does, however, posit the interpretative obligation in broad terms, i.e. the

court should endeavour, if possible, to give the relevant domestic legislation a

meaning which conforms with the Irish State's international obligations.

58. Of course, there are limits to the interpretative obligation. A court cannot, for

example, favour an interpretation which would do violence to the language of

the domestic legislation. Happily, it is not necessary for the resolution of the

within proceedings to attempt to delineate the precise contours of the

interpretative obligation. This is because the relevant provisions of the Transfer

of Sentenced Persons Act 1995 can readily be interpreted in conformity with the

Convention without having to go much beyond the literal meaning (if at all).

59. (As discussed under the next heading below, the domestic legislation is also

subject to the specific interpretative obligation imposed upon a national court to

give effect to EU law).

60. It is apparent from the terms of the Transfer of Sentenced Persons Act 1995 that

it has been enacted to give effect to the Convention on the Transfer of Sentenced

Persons. Both parties are agreed that the correct interpretation of the Convention

is that a person in the position of the applicant, i.e. a person who for reasons of

mental condition has been held not criminally responsible for the commission of

an offence, is eligible for transfer.

61. For the reasons which follow, I am satisfied that the domestic legislation is

capable of being interpreted in a manner which is consistent with the objectives

of the Convention. Specifically, the definition of "sentence" under section 1 of

the Transfer of Sentenced Persons Act 1995 is broad enough to accommodate a

Convention-compliant interpretation. The phrase "on account of the

commission of an offence" includes circumstances where a person has been

deprived of their liberty in accordance with section 5 of the Criminal Law

(Insanity) Act 2006. To elaborate: the jurisdiction to commit a person who has

been found "not guilty by reason of insanity" to indefinite detention at the

Central Mental Hospital is contingent on a jury having returned a special verdict

in criminal proceedings. It is, of course, correct to say that a special verdict on

its own does not result in an automatic committal. Rather, there is an additional

requirement that the trial judge be satisfied that the accused person is suffering

from a mental disorder (as defined), and is in need of in-patient care or treatment

in a designated centre. Notwithstanding this additional requirement, the return

by the jury of a special verdict is nevertheless an essential prerequisite to the

exercise of the court's jurisdiction.

62. A special verdict in criminal proceedings is a sine qua non to the making of a

committal order under section 5 of the Criminal Law (Insanity) Act 2006. There

is thus a direct nexus between the finding that an accused person has carried out

the acts constituting the offence (albeit without criminal responsibility), and the

committal order made by the court.

63. It is also relevant that the definition of "sentence" under the Transfer of

Sentenced Persons Act 1995 speaks of "punishment" or other "measure"

involving deprivation of liberty, thus implying that the definition includes non-

punitive detention. Notwithstanding that the purpose of the applicant's detention

is the provision of in-patient care or treatment, the applicant could not have been

subject to an order made by a court exercising its criminal jurisdiction but for

the fact that he had been found by a jury to have committed the act of dangerous

driving causing death. It is apparent from the Long Title of the Act that it is

intended to apply not only to convicted prisoners, but extends to persons detained

in hospitals or other institutions under orders made in the course of the exercise

by courts and tribunals of their criminal jurisdiction.

64. The Minister, through counsel, has submitted that an interpretation of the term

"sentence" which encompasses a person detained pursuant to section 5(2) of the

Criminal Law (Insanity) Act 2006 would involve substituting the objectives of

the Convention for the actual wording used in the domestic legislation. Put

otherwise, it appears to be suggested that the interpretation would be contra

legem. With respect, I cannot accept that this submission is correct. There are,

of course, limits even to the purposive approach to interpretation. If and insofar

as a purposive approach involves moving beyond the literal meaning (in the strict

sense) of legislation, then the statutory language must be capable of bearing that

alternative meaning. The statutory language must be amenable to different

interpretations, i.e. the wording must be open-textured, or present some degree

of ambiguity.

65. The wording of the domestic legislation at issue in this case is sufficiently open-

textured to accommodate a Convention-compliant interpretation. The phrase

"on account of the commission of an offence" can legitimately be interpreted as

meaning that the commission of an offence (in the sense of having carried out

the act or omission alleged) is a prerequisite to, but not necessarily the only

prerequisite to, the deprivation of liberty.

66. The analogy drawn by the Minister with the separate procedure for involuntary

detention under the Mental Health Act 2001 (as amended) is not apt for the

reasons outlined by leading counsel for the applicant. The involuntary detention

is not contingent on criminal proceedings. Persons detained under the Mental

Health Act 2001 are not, in general, treated in the Central Mental Hospital unless

transferred there subsequently. Moreover, their continued detention is subject

to review by the Mental Health Tribunal (not by the Mental Health (Criminal

Law) Review Board). The latter legislation thus entails a separate and distinct

statutory regime.

67. By contrast, the applicant is detained under a statutory regime that only governs

individuals who have committed an act or omission which makes up a criminal

offence (albeit they have been held not to have criminal responsibility).

EU LAW CONSIDERATIONS: FRAMEWORK DECISION

68. For the reasons set out under the previous heading, I have concluded that the

domestic law definition of "sentence" (and the cognate definition of "sentenced

person") can legitimately be given an interpretation which is consistent with the

Convention. On this interpretation, the applicant represents a "sentenced

person" and is thus eligible for transfer as a matter of domestic law.

69. The same result is reached by reference to the Framework Decision on the

Transfer of Prisoners (Council Framework Decision 2008/909/JHA of

27 November 2008).

70. It may be helpful to the reader to pause briefly here, and to explain the nature of

a framework decision. It represented a form of intergovernmental decision-

making, which applied prior to the entry into force of the Lisbon Treaty, in the

fields of police and judicial cooperation in criminal matters. Framework

decisions were binding upon the Member States as to the result to be achieved,

but left the choice of form and methods to the national authorities. Framework

decisions did not entail direct effect.

71. Relevantly, a national court is obliged to interpret domestic law in conformity

with a framework decision. This interpretative obligation is qualified by the

contra legem rule. See Case C-105/03, Pupino (at paragraph 47) as follows.

"The obligation on the national court to refer to the content

of a framework decision when interpreting the relevant rules

of its national law ceases when the latter cannot receive an

application which would lead to a result compatible with that

envisaged by that framework decision. In other words, the

principle of conforming interpretation cannot serve as the

basis for an interpretation of national law contra legem. That

principle does, however, require that, where necessary, the

national court consider the whole of national law in order to

assess how far it can be applied in such a way as not to

produce a result contrary to that envisaged by the framework

decision."

72. The relevant provisions of the Framework Decision on the Transfer of Prisoners

have been set out earlier (at paragraphs 24 and onwards). Crucially, the

Framework Decision maintains the same distinction between (i) the commission

of a criminal offence, and (ii) the concept of criminal responsibility, as is found

under the Convention on the Transfer of Sentenced Persons. If anything, the

slightly modified wording of the definition of "sentence" under the Framework

Decision emphasises this. It follows that the applicant is eligible for transfer

under the Framework Decision as a "sentenced person". This is confirmed by

the European Commission's published handbook on the transfer of sentenced

persons and custodial sentences in the European Union (discussed earlier).

73. This court is obliged, insofar as possible, to interpret the relevant domestic

legislation, i.e. the Transfer of Sentenced Persons Act 1995, in conformity with

the Framework Decision. This interpretative obligation may well be stronger

than that which applies in the case of a non-EU international instrument.

74. For reasons similar to those discussed under the previous heading, I am satisfied

that the definition of "sentence" under section 1 of the Transfer of Sentenced

Persons Act 1995 is broad enough to accommodate an interpretation which is

compliant with EU law as set out in the Framework Decision.

CONCLUSION AND FORM OF ORDER

75. The uncontroverted evidence before the court is that it is in the applicant's best

interests to be transferred to his home country of Germany. This would ensure

that the applicant is close to his family (including his wife, young son and elderly

mother). It would also allow the applicant to receive treatment in his native

language. A secure psychiatric institution in Germany has agreed to accept the

applicant and to take responsibility for his treatment.

76. For the reasons set out herein, the Minister's decision to refuse the application

for a transfer on the basis that the applicant is not a "sentenced person" is

erroneous in law. The restrictive 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. Such an

interpretation would be contrary to the principle that the courts should

endeavour, if possible, to give the domestic legislation a meaning which

conforms with the Irish State's obligations under the Convention. (Sweeney v.

Governor of Loughan House Open Centre [2014] IESC 42; [2014] 2 I.R. 732).

More fundamentally, it would be contrary to the interpretative obligation

imposed upon a national court by EU law. (Case C-105/03, Pupino).

77. The correct interpretation of the Transfer of Sentenced Persons Act 1995 is that

it applies to a person, such as the applicant, who for reasons of mental condition

has been held not criminally responsible for the commission of an offence. The

applicant is, therefore, eligible for transfer under the domestic legislation.

78. It follows that the applicant is entitled to an order of certiorari setting aside the

Minister's decision to refuse to issue a warrant for his transfer out of the State.

The court will also make a formal declaration to the effect that the applicant

represents a "sentenced person" for the purposes of the Transfer of Sentenced

Persons Act 1995.

79. The matter will now be remitted to the Minister with a direction to reconsider

the transfer application and to reach a decision in accordance with the findings

in this judgment (Order 84, rule 27). The applicant has liberty to apply to this

court in the event that a fresh decision has not been made within twenty-eight

days of the date of this judgment. There has already been an inordinate delay in

the processing of the transfer application (which it will be recalled was first made

to the Minister on 3 December 2018). It is in the interests of justice that this

matter be brought to a conclusion, one way or another, within a short period of

time.

80. The reporting restrictions, which had first been imposed at the time of the

application for leave to apply for judicial review, continue in force. Specifically,

the publication or broadcast of any matter relating to the proceedings which

would, or would be likely to, identify the applicant is prohibited pursuant to

section 27 of the Civil Law (Miscellaneous Provisions) Act 2008.

81. These orders will be drawn up immediately, with the issue of costs to be

addressed in a separate order.

82. Insofar as costs are concerned, and given that this judgment has been delivered

electronically, the attention of the parties is drawn to the notice published on

24 March 2020 in respect of such judgments, as follows.

"The parties will be invited to communicate electronically

with the Court on issues arising (if any) out of the judgment

such as the precise form of order which requires to be made

or questions concerning costs. If there are such issues and

the parties do not agree in this regard concise written

submissions should be filed electronically with the Office of

the Court within 14 days of delivery subject to any other

direction given in the judgment. Unless the interests of

justice require an oral hearing to resolve such matters then

any issues thereby arising will be dealt with remotely and

any ruling which the Court is required to make will also be

published on the website and will include a synopsis of the

relevant submissions made, where appropriate."

83. The default position under Part 11 of the Legal Services Regulation Act 2015 is

that legal costs follow the event, i.e. the successful party is entitled to recover

their legal costs as against the unsuccessful party. Given that the application for

judicial review has been successful, my provisional view is that an order for

costs should be made in favour of the applicant as against the respondent. Such

costs to be adjudicated in default of agreement by the Office of the Legal Costs

Adjudicator. If the Minister wishes to contend for a different form of costs order

than that proposed, or to say that costs should be dealt with under the Legal

Aid Custody Issues Scheme, then this should be addressed by way of written

submissions to be filed electronically by 11 January 2021. The applicant's side

will have two weeks thereafter to reply.

Appearances

Feichín McDonagh, SC and Julia Fox for the applicant instructed by Duncan Grehan &

Partners

Robert Barron, SC and Michael D. Hourigan for the respondent instructed by the

Chief State Solicitor

Donal McGuinness for the notice party instructed by Byrne Wallace Solicitors

Result: Declaration that applicant is a "sentenced person" and eligible for transfer.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S. v Minister for Justice (Transfer Of Sentenced Person) (Approved) (Rev 2) [2020] IEHC 632 (11 December 2020) URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC632.html Cite as: [2020] IEHC 632

High Court of Ireland Decisions