Balmer v Minister for Justice and Equality

Factual and Procedural Background

In 1984 the Appellant, a British national, was convicted of murder in The State and received a mandatory life sentence. A “tariff” (minimum term) of 12 years, later increased to 15 years, was fixed under the law of England and Wales. After serving the tariff the Appellant remained in custody under the “risk phase” of the sentence. He was conditionally released on licence in 2011 but that licence was revoked in 2012 for “allegedly committing a further offence” and “poor behaviour.” A European Arrest Warrant (EAW) was issued, executed in The City in 2013 and the Appellant has since been held pending surrender. The High Court ordered surrender; the Court of Appeal (majority) affirmed; one judge dissented. The Supreme Court granted leave on two issues concerning (i) constitutional limits on preventive detention and (ii) procedural safeguards on recall.

Legal Issues Presented

1. Whether surrender is prohibited under section 37(1)(b) of the European Arrest Warrant Act 2003 on the ground that, after expiry of the punitive tariff, continued detention in the issuing state is constitutionally impermissible “preventive detention.”
2. Whether the absence of an ex ante hearing before revocation of the licence offends Article 40.4 of the Constitution and Article 5 ECHR, thereby precluding surrender.

Arguments of the Parties

Appellant's Arguments

• Post-tariff detention is solely preventive and would breach the Irish Constitution’s guarantee of liberty and the presumption of innocence.
• The Irish prohibition on preventive detention is a universal personal right enforceable extraterritorially; surrender therefore violates section 37(1)(b).
• No hearing preceded the recall; this infringes Article 40.4 of the Constitution and Article 5 ECHR.

Respondent's Arguments

• The UK sentence is a life sentence comparable in nature to the Irish sentence; differences concern administration, not legal character.
• Under Brennan and allied authority, surrender is barred only where the foreign system displays an egregious and fundamental defect; the UK regime does not meet that threshold.
• The recall procedure offers prompt parole-board review and written reasons, satisfying constitutional and Convention standards.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Scope of Constitutional Protection Abroad. The Court rejected the view that all constitutional rights apply extraterritorially save where enforcement is impracticable. Article 29 requires respect for the sovereignty of other states and facilitates mutual cooperation; therefore Irish courts intervene only where a foreign system exhibits fundamental, egregious defects.

2. Nature of the UK Life-Sentence Regime. Evidence from an English barrister showed that the “tariff/risk” terminology is non-statutory. A life prisoner must be released once the Parole Board is satisfied public protection no longer requires detention; upon release the licence may be revoked with parole-board review. Although the mechanism differs from Irish practice, both jurisdictions impose the same mandatory life sentence and both consider risk on release.

3. Preventive Detention under Irish Law. Irish jurisprudence (e.g., O’Callaghan) forbids purely preventive detention of unconvicted persons, but sentencing and temporary-release decisions may legitimately weigh public protection. The Court accepted, arguendo, that transplanting the UK regime wholesale might raise constitutional concerns, yet held that such concerns did not reach the “egregious defect” threshold in the context of surrender.

4. Distinguishing Prior Authority. The decision in Nolan (IPP sentences) was not analogous; there the UK itself had conceded ECHR incompatibility. In Caffrey the Court had treated tariff issues as administrative, not altering the life sentence’s legal nature. Consequently Caffrey was not dispositive but supported surrender.

5. Procedural Fairness on Recall. The recall notice guarantees written reasons and an immediate right to challenge before an independent parole board; this satisfies Article 40.4 Constitution and Article 5 ECHR.

Holding and Implications

APPEAL DISMISSED – SURRENDER ORDER AFFIRMED.

The Supreme Court concluded that the United Kingdom’s life-sentence framework does not constitute an egregious or fundamental defect under Irish constitutional standards and that the recall procedure affords adequate safeguards. The decision confirms the high threshold for refusing surrender under section 37(1)(b) and underscores the Court’s commitment to mutual trust within the European Arrest Warrant system rather than imposing domestic constitutional norms abroad.