Judgment Title: Farrell -v- Governor of Portlaoise Prison & Ors
Neutral Citation:  IEHC 392
High Court Record Number: 2014 1231 SS
Date of Delivery: 05/08/2014
Court: High Court
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 392
THE HIGH COURT
[2014 No. 1231 SS]
IN THE MATTER OF AN APPLICATION PURSUANT TO
ARTICLE 40 OF THE CONSTITUTION
GOVERNOR OF PORTLAOISE PRISON, THE IRISH PRISON SERVICE, MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
JUDGMENT of Mr. Justice Gerard Hogan delivered the 5th day of August, 2014
1. Where a prisoner is of good conduct and engages in authorised structured activities within the prison, is that prisoner entitled to enhanced remission of one third of his or her sentence having regard to the provisions of Rule 59(2) of the Prison Rules 2007 (S.I. No. 252 of 2007) (“the 2007 Rules”)? That is essentially the issue that is presented in this application for the release of the applicant pursuant to Article 40.4.2 of the Constitution.
2. In December 2011, the applicant, Mr. Farrell, was sentenced by the Special Criminal Court to a term of five years imprisonment for membership of an illegal organisation, contrary to s. 21 of the Offences Against the State Act 1939 (as amended). The applicant had previously gone into custody in December 2010 and the sentence accordingly took effect from that earlier date. As the applicant has been of good behaviour it is anticipated that with the one quarter remission provided for by Rule 59(1) of the 2007 Rules he will shortly be released on 1st September 2014. If, however, the applicant is entitled - as he contends - to the enhanced one third remission under Rule 59(2) of the 2007 Rules, then it is common case that he would already have been entitled to have been released on 1st April 2014. The legality of the applicant’s present detention accordingly turns on whether he is, in fact, entitled to such enhanced remission.
3. It is only fair to say that Mr. Farrell has been of exemplary conduct since he was sentenced. In recognition of that good conduct he has been given enhanced prisoner status since October 2012. He has no addiction problems and nor has he any psychiatric or psychological issues. He has never been the subject of any disciplinary report. The applicant has, however, spent the entirety of his sentence on the E2 landing of Portlaoise Prison. All the prisoners on this landing are self acknowledged members of an illegal organisation styling itself as the “Irish Republican Army”.
4. Of the fourteen prisoners on the landing, six are rostered to work on any given day. The applicant’s work duties include food management and cleaning. The applicant has completed a series of courses while in prison, including a semester on computer graphics in 2011/2012, a course in Art and Design in 2013, a course in leatherwork in 2011 and an occupational first aid course (which is at FETAC level 5). The applicant has been given temporary release on three separate occasions in the course of his sentence and he has always honoured the terms of that temporary release.
5. Rule 59(2) of the 2007 Rules provides that:
Prisoners should engage in the services that meets their needs. Your clients may be linking in with all or some of the above services, but a supporting report from the areas he has engaged with may enhance his case for the request of one third remission.”
12. Much of the foregoing is not disputed by the respondents. The Minister stresses, however, that the applicant has not engaged with the Probation Services with a view to reducing the risk of re-offending. She points to the fact that the applicant could, for example, have availed of a specific eight week course dealing with offending behaviour, but did not do so.
13. The Minister further points out that the applicant has chosen to associate with other members of an illegal organisation in the E-block of Portlaoise Prison. These prisoners consider that they are “political” prisoners and that they have not been properly convicted of any criminal offences. She considers that the fact that the applicant elected to remain with these prisoners “is a highly relevant factor in the consideration of his likelihood of reoffending.”
14. The position of the respondents was well summed up by the following minute of the operations directorate of the Irish Prison Service on 30th May 2014:
The power to remit sentences and Article 13.6 of the Constitution
18. It must be stressed that in the light of the provisions of Rule 59 the exercise of the executive power to remit is accordingly not a free standing one, such as would obtain if there were no provisions dealing with remission in the Prison Rules. Given, however, that there are such provisions, then where (as here) the executive power is so regulated by law (including a statutory instrument), it follows that in any challenge to the exercise of that power, the issue becomes whether the power has been exercised in a manner compatible with that particular law. That is essentially the sole question here.
The essential elements of Rule 59(2)
20. These underlined words are (“as a result”) of some importance. The issue is not whether, generally speaking, the prisoner will be more likely to re-offend as a matter of abstract prediction, but rather, whether by reason of the prisoner’s participation in authorised structured activities, he is thereby less likely to re-offend. In considering whether to grant remission in the present case, the Minister had regard to a range of views expressed by others with whom she consulted. Thus, for example, An Garda Síochána expressed the view that, having regard to Mr. Farrell’s strong links with a particular illegal organisation, they had no reason to believe that he would not re-engage in subversive activities. It was for that reason they counselled against the grant of enhanced remission to Mr. Farrell.
21. The Gardaí may well be correct in their assessment, but it is not a factor which the Minister can legitimately take into account for the purposes of a Rule 59(2) application. The single question permitted by Rule 59(2) is whether the Minister is satisfied that by reason only of a prisoner’s participation in authorised structured activities, that prisoner is less likely as a result to re-offend and to re-integrate into the community.
22. It must also be recalled that the definition of “authorised structured activity” in Rule 27(2) envisages participation in work, education, vocation training and other programmes sanctioned by the Governor which are in themselves intended to ensure that “a prisoner, when released from prison, will be less likely to re-offend or better able to re-integrate into the community.” Rule 27(3) further envisages that “insofar as is practicable” each convicted prisoner “should be engaged in authorised structured activity for a period of not less than five hours on each of five days in each week.”
23. The scheme of the Prison Rules, therefore, ordains that prisoners should generally engage in regular authorised structured activity for twenty-five hours each week. Such activities are, however, by definition, designed to ensure that participants “will be less likely to re-offend and to re-integrate into the community.” (Rule 27(2) uses the disjunctive “or” rather than the conjunctive “and” which appears in Rule 59(2), but I do not see that this difference is material so far as the assessment of the present legal issue is concerned.) The entire relationship between Rule 27(2) and Rule 59(2) is accordingly somewhat circular. The permitted structured activities are those which are likely to reduce the risk of re-offending. It follows that where a prisoner participates successfully in such activities, the Minister would be obliged to conclude that he was less likely to re-offend, so that the enhanced remission provisions of Rule 59(2) would accordingly be triggered.
24. This, however, is the very point which Barrett J. made in his masterly analysis of this entire issue in Ryan v. Governor of Midlands Prison  IEHC 358. This was a case where very similar issues to the present case also arose and Barrett J. noted that the applicant in that case:
26. Barrett J. held that the applicant had accordingly complied with the requirements of Rule 59(2) by engaging in authorised structured activities. It was irrelevant that he had not engaged in certain type of activities which are apparently officially preferred (such as the engagement with the Probation Services), even though there was nothing to suggest that the applicant in that case (or, for that matter, in the present case) had ever been made aware of this fact.
27. In these circumstances, Barrett J. concluded that the Minister had fettered his discretion and had acted irrationally because, even if irrelevant material was discarded:
30. It follows, therefore, that, just as in Ryan, had the appropriate legal tests been applied, then the Minister would have bound to have concluded in the circumstances that the applicant satisfied the requirements of Rule 59(2). In truth, once Mr. Farrell successfully participated in the authorised structured activities, he was entitled to such enhanced remission under Rule 59(2), not as a matter of any real discretion on the part of the Minister, but rather in effect as a matter of law having regard in particular to the definition of authorised structured activities in Rule 27(2). On this basis, therefore, he ought to have been released on 1st April 2014.