Friday, January 13, 2023

High Court reporters

The High Court has awarded €2,500 in damages to each of three men jailed for trying to acquire weapons for the Real IRA for the period of their incarceration found by the Irish courts to have been unlawful.

Mr Justice Cian Ferriter held that Fintan O’Farrell, Declan Rafferty and Michael McDonald who are all from Co Louth, were entitled to succeed in their claim for false imprisonment and were entitled to the damages award.

However, the judge said the men were not entitled to substantial damages on grounds including that the sentences they had originally received for terrorist offences from an English court had never been invalidated.

The three men had attempted to source arms and the financial support of the Iraqi Government and were arrested by Slovakian police in July 2001 after they had met with men they believed were Iraqi arms dealers.

The ‘dealers’ were undercover British security agents. Following their arrest, all three were extradited to England.

In 2002 they all pleaded guilty, before a London court, to conspiracy to cause explosions as well as charges under the UK’s 2000 Terrorism Act and ultimately received prison sentences of 28 years.

In 2006 they were transferred to Portlaoise Prison.

In 2014 the High Court found that the continued detention of O’Farrell, Rafferty with addresses in Carlingford, and McDonald from Dundalk was unlawful, and their release was ordered.

Sentencing systems

This was because of differences between the UK and Irish sentencing systems including that prisoners in Ireland are entitled to one quarter remission of their sentences whereas in the UK one third remission normally applies, and the court directed that they be released from custody.

The courts, arising out of an earlier unrelated case held that the warrants allowing their transfer from a UK prison to Ireland were defective in referring to the men’s 28-year sentences and not the term they should have served, which was 18 years and 8 months.

The warrants should have referred to a definite term of two thirds of the sentences they received in the UK, the Irish courts further held.

The three sought damages for the time that they spent in prison which the Irish courts deemed to be unlawful.

The period of false imprisonment, they claimed, amounted to breaches of their constitutional right to liberty.

The men had brought their claims against the Minister for Justice, Ireland and the Attorney General and the Governor of Portlaoise Prison.

Rights to liberty

They claimed the defendants were negligent on grounds including that they allowed the men to be imprisoned on foot of an order that was invalid and failed to observe their rights to liberty.

The men claimed that they spent eight years in Portlaoise Prison, which they described as an old facility with poor heating and where they had to ‘slop out’ their cells every morning.

The defendants opposed the claims and had argued that they were not entitled to damages.

In his decision the judge said while the errors in the process leading to the defective warrants were not merely trivial the judge said he found no evidence of the defendants having been party to a knowing breach of the plaintiffs’ rights.

The judge said he did not accept as well-founded the defendants’ submission that the three men’s conduct would justify the court not awarding them damages.

Such an approach could lead to the “complete negation of the important role of vindication of the constitutional right to liberty which is fulfilled by an award of damages in a false imprisonment case,” he added.

Warrants unlawfully issued

However, the effect of the finding that the warrants were unlawfully issued was “not to invalidate the underlying English sentences,” he said.

As a result of their admitted conduct in committing serious terrorist offences, the plaintiffs had no lawful entitlement to serve less than 18 years 8 months in prison.

“Any equitable approach to damages cannot ignore the fact that the plaintiffs through their conduct and through the passing of English sentences which have never been invalidated stood to serve over 18 years in prison subject to remission,” he said.

As matters transpired, they spent only just over 13 years in prison, the judge added.

“In my view, any approach to the assessment of damages for their false imprisonment has to reflect that reality.” the judge said.

All three, he said, were entitled to €2,500 damages each.

The judge said he had arrived at that figure based on facts including that the three were detained in Portlaoise Prison on foot of an invalid Irish detention order for an eight-year period of which he said just under 4 years was actionable.

Other facts the court took into consideration when arriving at the level of the awards included that the men’s conduct for extremely serious terrorist offences meant that their interest in liberty before the expiry of the sentences handed down by the English courts “was attenuated to negligible levels.”

As a result of their release the plaintiffs spent less time in prison as a whole than they were lawfully sentenced to serve by the English courts, the judge said.

Had they remained in England, they would not have been released before their sentences, less any period for remission, had been completed.

Their claims of suffering personal inconvenience, stress, and frustration on missing out while in Portlaoise Prison on key life events counted for little or nothing in the scales of what an equitable award would require in the circumstances, Mr Justice Ferriter added.

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