Denham C.J.
O’Donnell J.
McKechnie J.
Clarke J.
MacMenamin J.
Laffoy J.
O’Malley J.

Between/

Judgment delivered the 12th day of July, 2016 by Denham C.J.

1. This appeal raises a matter of statutory interpretation. The members of the Court are agreed that the warrants issued by the High Court, pursuant to s. 7 of the Transfer of Sentenced Persons Acts 1995 – 1997, referred to as “the Act of 1995”, are defective. Also, it is agreed that the sentences stated in the said warrants cannot now be adapted under s. 7(5) of the Act of 1995. Thus, the issue which the court must address is whether the sentences on the said warrants can be varied pursuant to s. 9(1)(b)(ii) of the Act of 1995.

2. This is an appeal by the Governor of Portlaoise Prison, the respondent/appellant, who is referred to as “the Governor”, from the orders of the High Court (Hogan J.) made on the 18th June, 2014 and the 26th August, 2014.

3. The appeal was initially listed in the Supreme Court and then transferred to the Court of Appeal, pursuant to Article 64.3.1 of the Constitution. Subsequently, on applications to the Court, it was determined (Denham C.J., Hardiman J., Clarke J) on the 13th March, 2015, pursuant to Article 64.3.3 of the Constitution, that in each of the three cases, brought by Fintan Paul O’Farrell, Michael Christopher McDonald and Declan John Rafferty, the applicants/respondents, who are referred to collectively as “the respondents”, that the direction be cancelled: [2015] IESCDET 10, [2015] IESCDET 11, [2015] IESCDET 12. The three appeals were case managed together, and then heard together.

4. The Hon. Mr. Justice Hardiman was a member of the Court which heard the appeal originally. However, judgment had not been delivered when the untimely death of Mr. Justice Hardiman occurred. Consequently, the appeals were relisted for hearing, on the 6th May, 2016.

Background
5. On the 2nd May, 2002, in Woolwich Crown Court, in the United Kingdom, the respondents pleaded guilty to offences. These offences included: (i) conspiracy to cause an explosion; (ii) entering an arrangement to make money or other property available for the purposes of terrorism; (iii) inviting another to provide money or other property for the purposes of terrorism. The respondents were sentenced to 30 years for the first said offence, and for the second and third named offences set out above, and another, to twelve years imprisonment on each of the said offences. The respondents appealed the sentences to the Court of Appeal of England and Wales, which, on the 15th July, 2005, quashed the sentences of thirty years and substituted sentences of twenty eight years, and affirmed the other sentences. The High Court found that these varied sentences were a final order of the Courts of England and Wales.

6. The respondents applied for a transfer to Ireland pursuant to the Act of 1995.

7. On the 28th July, 2006, the High Court issued warrants pursuant to s. 7 of the Act of 1995, providing for the transfer of the respondents to Ireland. These warrants issued by the High Court referred to the sentences in England and Wales as (a) twenty eight years imprisonment for the conspiracy to cause explosions, (b) twelve years imprisonment concurrent to the said twenty eight years imprisonment, for each of the other offences. The date of commencement of the sentences was stated to be the 7th May, 2002.

8. In a judgment delivered on the 26th August, 2014, [2014] IEHC 416, the High Court (Hogan J.) addressed a number of issues, and concluded that the detention of the first named respondent could not be shown to be lawful as a valid warrant could not be produced to justify the detention. In the circumstances the High Court said that it could direct the release of the respondent in accordance with Article 40.4.2 of the Constitution. A similar order was made for each of the other respondents.

9. Thus, on the 26th August, 2014, the High Court ordered that the warrants in the proceedings were defective; liberty was given to the Governor to bring a notice of motion returnable for the 1st September, 2014, and the proceedings were adjourned for mention to the 3rd September, 2014.

10. The State (the Governor, the Minister for Justice and Equality, Ireland and the Attorney General) brought a motion for the 1st September, 2014 seeking:

“1. An order pursuant to s. 9(1)(b)(ii) of the Transfer of Sentenced Persons Acts 1995 – 1997, varying the Warrant issued by this Honourable Court on the 9th August, 2006, in order to give effect to the provisions of the European Convention on the Transfer of Sentenced Persons;”

11. In other words, the State sought to vary the original warrants. This was following the judgment of Hogan J. where he had held that the warrants were defective. But, he stated in his judgment of the of the 11th September, 2014, [2014] IEHC 420:

“I took the further view, however, that, having regard to the nature of the errors, the interests of the sentencing State and the otherwise very full description of the offences contained in the warrants, it would be appropriate that the Minister should have the opportunity, should she thought it appropriate to do so, to apply to this Court under s. 9(1)(b) of the 1995 Act to have the terms of the existing s. 7 warrant varied so that the duration of the sentence was correctly recorded and the defective warrant amended. I adjourned the present Article 40.4.2 proceedings pending the outcome of this application which the Minister has now made to this Court.”

12. The learned High Court judge discussed the difference between the power to adapt and the power to vary a warrant under the Act of 1995.

Defect in the Date of Commencement of the Sentence
13. A defect in the s. 7 warrant was the date of the commencement of the sentence. The High Court took the view that this error could be corrected by the making of a variation order under s. 9(1) of the 2005 Act. The learned trial judge stated that such a corrective order is akin to an order under the Slip Rule (O. 28 r. 11).

Defect in the Sentence
14. The defect in the sentence referred to was then addressed. Counsel for the State submitted that the sentence could be varied, reflecting the nature of the English sentence, as interpreted in Sweeney v. Governor of Loughan House Open Centre [2014] IESC 42, [2014] 2 I.R. 732, from a sentence of twenty eight years to one of eighteen years and eight months. However, the High Court held:-

“ …I find myself driven to the conclusion that the English sentence, accordingly, requires to be adapted by means of an order under s. 7(5) of the 1995 Act (the text of which is set out below). Unless the terms “adapt” and “vary” were to be treated as interchangeable by the court – something which would effectively elide and collapse the distinction so carefully drawn by the Oireachtas in the 1995 Act itself – the necessary modification of the English sentence positively requires the making of an adaptation order, so that it can be transformed into an equivalent sentence for the purposes of Irish law. This cannot be done by means of the making of a variation order under s. 9(1), as that power does not extend to the essential modification of the sentence imposed which would be required in turn to effect such a modification of the s. 7 warrant. Put another way, the power to vary cannot be exercised as a substitute for the power to adapt.”

15. The issue for decision is whether the High Court erred in holding that it did not have power to vary the warrant in relation to the defect in the sentence. Thus, it is a question of the interpretation of the statute, in particular the analysis of the power to vary.

The Act of 1995
16. The Act of 1995 enabled the State to ratify the Council of Europe’s Convention on the Transfer of Sentenced Persons, 1983, which is referred to as “the Convention”. The Convention was ratified by Ireland on the 31st July, 1995, and came into force on 1st November, 1995. The purpose of the Convention is to enable prisoners serve their sentences, imposed abroad, in their home State. Thus, it is for the benefit of prisoners, so that they may serve their sentences where the language and culture are their own, and where they are near family and friends. Thus, a sentenced person may be transferred pursuant to the Convention only on the conditions, inter alia, (i) that the person is a national of the administering State; (ii) that the person still has at least six months of the sentence to serve or it is indeterminate; (iv) that the sentenced person consents to the transfer; (v) that the acts or omissions for which the sentence was imposed would constitute an offence in the administering State: and (vi) that the sentencing and administering States agree to the transfer.

Adaption
17. Section 7 of the Act of 1995 was amended in the Transfer of Sentenced Persons (Amendment) Act, 1997, to make specific provision for the adaption of the sentence by the High Court. It provides:-

“1.—The Transfer of Sentenced Persons Act, 1995, is hereby amended in section 7—

(a) by the substitution of the following subsections for subsections (5) and (6):

(5) (a) On an application to the High Court under subsection (1) of this section, if the sentence concerned imposed by the sentencing state concerned is by its legal nature incompatible with the law of the State, the Court may adapt the legal nature of the sentence to that of a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed.

(b) The Minister may, in his or her absolute discretion if he or she thinks it appropriate to do so, include in an application to the High Court under subsection (1) of this section an application that the Court adapt the duration of the sentence concerned imposed by the sentencing state concerned to that of a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed and, if the Minister does so and the sentence concerned imposed by the sentencing state concerned is by its duration incompatible with the law of the State, the Court may adapt the duration of that sentence as aforesaid.

(6) (a) The legal nature of a sentence adapted under paragraph (a) of subsection (5) of this section shall, as far as practicable, correspond to the legal nature of the sentence concerned imposed by the sentencing state concerned and shall not, in any event, either—

(i) aggravate it, or

(ii) exceed the maximum penalty prescribed by the law of the State for a similar offence.

(b) The duration of a sentence adapted under paragraph (b) of subsection (5) of this section shall, as far as practicable, correspond to the duration of the sentence concerned imposed by the sentencing state concerned and shall not, in any event, either—
(i) aggravate it, or

(ii) exceed the maximum penalty prescribed by the law of the State for a similar offence.”,

and

(b) by the insertion of the following subsection after subsection (9):

“(10) In this section, a reference to the legal nature of a sentence does not include a reference to the duration of such sentence.”

Thus, the Oireachtas addresses more fully the issue of the adaption of a warrant. It is clear that such adaption takes place only at the time of the original application to the High Court. Thus, the warrants the subject of this appeal may not now be adapted.

18. In accordance with the law of England and Wales, the sentences in issue were to be served partly by a term of imprisonment and partly in the community. Applying an analysis of Sweeney, the High Court held that the sentences imposed in England and Wales of twenty eight years were a sentence of approximately eighteen years and eight months, whereas the sentences set out on the warrant under s. 7 of the Act of 1995 were of twenty eight years. The learned High Court judge held that the s. 7 warrants which provided for a sentence of twenty eight years, were defective.

Vary
19. Thus, the issue then became, and is now, whether the warrants may be varied. The High Court analysed the difference between the power to adapt a warrant under s. 7 and the power to vary under s. 9, and concluded that the Court did not have the power to vary the sentences on the warrants.

20. Section 9 of the Act of 1995 provides:-

“9.—(1) If at any time it appears to the Minister appropriate, in order that effect may be given to the provisions of the Convention, that a warrant under this Act for the transfer of a person in or out of the State should be revoked or varied, the Minister may—

(a) in the case of a warrant under section 5 of this Act—
(i) revoke the warrant, or

(ii) vary one or more of the provisions of the warrant;

and

(b) in the case of a warrant under section 7 of this Act—
(i) apply to the High Court for an order revoking the warrant, or

(ii) apply to the High Court for an order varying one or more of the provisions of the warrant.

(2) On an application under paragraph (b) of subsection (1) of this section, the High Court may make an order referred to in subparagraph (i) or (ii) of that paragraph if it considers it appropriate to do so in order that effect may be given to the provisions of the Convention.”

This section has not been revisited by the Oireachtas.

21. This section applies “at any time”, thus it is not limited, as the adaption provision is, to the initial process.

22. Under this section a court may make profound decisions. A court may revoke a warrant. It is thus a fundamental jurisdiction to exercise a power provided by the legislation.

23. In the same section the Court is given power to vary the provisions of a warrant. It is thus aligned with another fundamental power, and I consider it to be of an equal stature.

24. In this section the Court is given jurisdiction to revoke or vary the provisions of a warrant. The procedure is protected by being provided for within the jurisdiction of the Court, being the administration of justice by a judge.

25. Further, the jurisdiction given to the Court is given “in order that effect may be given to the provisions of the Convention”. It follows that the section may be interpreted so as to give effect to the Convention, which is for the benefit of the prisoners. It is clear that the Court is given the power to vary warrants. It may be presumed that this is to give effect to the operation of the transfer of prisoners in accordance with law.

26. The provisions for adaption, and revoking or varying, are made for different times. Adaption is a provision which may be invoked initially. The warrant for the transfer then enables the transfer of prisoners. The fact that a different word is used for a jurisdiction and power at a different time reflects that it is occurring at a later time. Thus, events may have occurred that require the revocation of a warrant, which would not have occurred on the initial application. Similarly, circumstances may arise which require an application to a court to vary a warrant. The fundamental authority to imprison the prisoner, the initial sentence, was imposed by the sentencing State. The warrants that follow are to enable the application of the Convention. This is administered by the State to which the prisoner wishes to transfer. The terms “adapt” and “vary” relate to different times. It is consistent with the Convention that at both such times the warrant could be altered so as to give effect to the Convention. The Act is premised on the grounds that it is to give effect to the provisions of the Convention.

27. The provisions of the Act of 1995 enable the process of transferring a prisoner, so as to give effect to the Convention.

28. I do not consider that the use of different words limits the power to vary. The fact that the term “adapt” is used in relation to the initial process and the power to adapt a warrant, does not reduce the power to “vary”. It is entirely logical that the term “adapt” be used in relation to the initial processing of the warrant, and that, once that has occurred the legislation speaks of to “vary” the warrant.

29. In its ordinary meaning the word “vary” is clear. It is a departure from a former position. The term “vary” means to change or to alter, and this plain meaning is endorsed by the definitions from the dictionaries. The word “vary” is defined in the Concise Oxford English Dictionary, Tenth Edition, Revised, as:-

“1. differ in size, degree or nature from something else of the same general class.

2. change from one form or state to another.”

30. The fact that earlier in the Act, and earlier in time, when the warrant is being initiated in the administering State, the Court is given jurisdiction to “adapt” a warrant, does not limit the jurisdiction of the Court at a later stage to “vary” the warrant. This is a powerful jurisdiction, given in conjunction with the jurisdiction to revoke a warrant. It is a jurisdiction to give effect to the Convention. The Convention is for the benefit of prisoners. Thus, the Act of 1995 gives to the Court the power to give effect to the Convention, and so, in the overall picture, to benefit prisoners.

Conclusion
31. Consequently, I am satisfied that the High Court has jurisdiction to vary the warrants in issue. I agree with the High Court that the date of commencement on the warrants could be varied, but I disagree with the distinguished judge that the power to vary is akin to the Slip Rule. The power to vary is aligned to the power to revoke a warrant, and gives jurisdiction to vary in the manner requested by the State in this case.

32. I am in agreement with the joint judgment of O’Donnell J. and Clarke J.

33. For the reasons given I would allow the appeal.