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= Michael Anthony Balmer v Minister for Justice and Equality =

Balmer v Minister for Justice is a reported decision of the Irish Supreme Court that decided that the sentencing regime in the UK for murder, while not compatible with the Constitution of Ireland, does not depart “so markedly from the scheme and order envisaged by the Constitution,” so as to prohibit the extradition of a person to the UK. [1] [1] Michael Anthony Balmer v Minister for Justice and Equality

[2017] 1 I.L.R.M. 1 [59]

Background
In 1983, in the UK, Michael Balmer broke into the home of his 62 year old neighbour with the intention of stealing her car keys. When she resisted he strangled her and then sexually assaulted her body. In 1984 he was convicted of murder and received a life imprisonment, which was the mandatory sentence.

On 2 March 2011 the appellant was released on licence. The terms of such a license included permanent residence at a specific location, and a requirement not to travel outside the United Kingdom without prior permission of a supervising officer.

Under the UK sentencing system, the “tariff” for a sentence was fixed at the time of sentencing at 12 years initially; but was later extended by ministerial decision to 15 years. After the expiry of a tariff period, a life sentence prisoner can only be detained further if it is considered that he or she poses a risk to the community if released. If it is considered that the convicted person does not pose a risk, then he or she is released “on licence,” which remains in force for the remainder of their life. This licence can be revoked at any time if it is considered necessary on public protection grounds.

On 19 March 2012, the appellant's licence was revoked. Two of the reasons given were “allegedly committed a further offence” and “poor behaviour”. No other information was contained in the notification of revocation. The appellant subsequently moved to Ireland. A European Arrest Warrant (“EAW”) was issued for his arrest on 31 October 2012. The EAW was eventually executed in Cork on 11 June 2013.

Balmer argued his arrest was prohibited under section 37 of the European Arrest Warrant Act 2003, as it breaches his rights guaranteed by Article 5 of the European Convention on Human Rights, because the United Kingdom's procedures did not provide for any hearing before a licence was revoked, and also Article 38.1 and 40.1 of the Constitution because his return would be to serve a sentence which would be purely preventative in nature.

Edwards J. in the High Court rejected these arguments and ordered the surrender of the appellant to the United Kingdom. The Court of Appeal by a majority (Peart and Mahon JJ.; Hogan J. dissenting) upheld the decision of the High Court. The Appellant sought to appeal to the Supreme Court

Holding of the Supreme Court
O’Donnell J. delivered the judgment of a unanimous Court. He dismissed the appeal, stating that, firstly, it was in conformity with the Art.40.3 and 40.4 of the Constitution to enforce a remaining element of a sentence, which was of a nature to prevent or deter, where a prisoner had already served the punitive portion of their sentence. And that, secondly, the revocation of the license did not breach Art.40.4 of the Constitution and Art.5 of the ECHR.

Firstly, the Irish Constitution did not, in general, apply abroad. Ireland was bound to respect the sovereignty of foreign friendly states, and it is permissible to order the surrender of a person to a country which did not have the same constitutionally protected trial system as Ireland. O’Donnell J. stated:

“The proposition that Ireland will not refuse to surrender a person to another country with whom it has an agreement, whether bilateral, multilateral, or pursuant to the obligations of membership of the European Union, merely because it is said that the manner in which that person would be treated would not be permitted here under the Constitution, is one which is, by now, well established.”[1]

Regarding Section 37 of the European Arrest Warrant Act 2003, the relevant section only applied to:

“matters of “egregious”[2] breach of fundamental principles of the Constitution or when something is so proximate a consequence of the court's order and so offensive to the Constitution as to require a refusal of surrender or return.”[3]

O’Donnell J. did not find such egregious differences between Irish and UK sentencing law for murder. In each country the sentence provided for was life imprisonment. The fact that the sentence imposed in the United Kingdom was structured differently did not alter the fact that it was a life sentence.

The Court noted some similarities, including that in both jurisdictions a risk assessment took place before a prisoner was released on licence, and that while it was long accepted that preventative detention by way of imprisonment was not constitutionally permissible in Ireland, it was the case that all sentences of imprisonment necessarily involved some element of preventative detention as any imprisonment will offer protection to society from the possible commission of other offences by that individual.

Therefore, the sentencing regime for murder which applied in the United Kingdom could not be considered to be such a fundamental defect in the justice system so as to require that the surrender must be refused under s.37(1) (b) of the 2003 Act.

Secondly, the Court found it was necessary to have a hearing prior to that recall for such deprivation of liberty to be in conformity with Art.40.4 of the Constitution and Art.5 of the ECHR. The Court decided simply that the provision of information, and the capability to seek a review or to appeal of a recall of a license were sufficient safeguards to comply with any requirement of fair procedures under both the Constitution and the European Convention on Human Rights.

The Supreme Court dismissed the appeal. [1] Michael Anthony Balmer v Minister for Justice and Equality

[2017] 1 I.L.R.M. 1 [25]

[2]  Minister for  Justice, Equality and Law Reform  v Brennan [2007] 3 I.R. 732; [2007] 2 I.L.R.M. [241]

[3] Michael Anthony Balmer v Minister for Justice and Equality

[2017] 1 I.L.R.M. 1 [44]