Judgment Title: Ryan -v- The Minister for Justice and Equality
Neutral Citation:  IEHC 513
High Court Record Number: 2014 551 JR
Date of Delivery: 04/11/2014
Court: High Court
Composition of Court:
Judgment by: O'Malley Iseult J.
Status of Judgment: Approved
Neutral Citation:  IEHC 513
Record No. 2014/551 JR
THE MINISTER FOR JUSTICE AND EQUALITY
Judgment of Ms Justice Iseult O'Malley delivered the 4th November, 2014.
1.2 On the 30th July, 2010 the applicant was sentenced to two concurrent sentences of six years imprisonment, to date from the 26th May, 2010, in respect of the offences of possession of a firearm and rounds of ammunition in suspicious circumstances. The standard remission applicable to his case is one quarter of the sentence, eighteen months, giving him a release date of the 24th November, 2014. If he is entitled to enhanced remission he could have been released at any time from the 24th May, 2014.
1.3 On the 3rd December, 2013, the applicant applied to be considered for one third remission. By letter dated the 16th April, 2014 the respondent notified the applicant that his application was refused.
1.4 In June, 2014 the applicant sought his release from custody pursuant to the provisions of Article 40.4 of the Constitution. On the 2nd July, 2014 the High Court (Barrett J.) ordered the release of the applicant on the basis of various findings as to the proper interpretation of the Prison Rules (hereafter "the Rules") and the manner in which the respondent dealt with the applicant's application for enhanced remission.
1.5 On appeal, the Supreme Court held that Article 40.4 was not the appropriate remedy for complaints of this nature, which ought instead be ventilated by way of judicial review. It quashed the order made by Barrett J. and ordered the re-arrest of the applicant. He duly handed himself in to the Gardaí and was returned to the custody of the prison service.
1.6 Leave to seek orders of certiorari and mandamus by way of judicial review was granted on the 24th September, 2014 (Barr J.) and the application was heard by this court on the 30th and 31st October, 2014.
2. Rule 59 of the Prison Rules. 2007
(a) a term of imprisonment exceeding one month or
(b) terms of imprisonment to be served consecutively, the aggregate of which exceeds one month
shall be eligible, by good conduct, to earn a remission of sentence not exceeding one quarter of such term or aggregate.
(2) The Minister may grant such greater remission of sentence in excess of one quarter, but not exceeding one third thereof where a prisoner has shown further good conduct by engaging in authorised structured activity and the Minister is satisfied that, as a result, the prisoner is less likely to re-offend and will be better able to reintegrate into the community.
2.3 It is also necessary to refer to Rule 27(2), the relevant part of which is as follows:
3.1 The grounding affidavit in the application was sworn by the applicant's solicitor, who set out the facts of the applicant's convictions and sentences and the correspondence with the respondent. She deposed that, on her instructions, the applicant had fully engaged with all such structured activity as had been made available to him. She also exhibited the correspondence with the respondent.
3.2 On the 3rd December, 2013 the applicant's solicitor wrote to the Prison Service seeking his inclusion in the programme for one third remission. It was stated in the letter that the applicant had an offer of employment should he be released (although the letter of offer was not actually enclosed). The applicant's conduct in prison was described in the following terms:
Our client instructs that he attends at the gym and has developed a level of fitness that was alien to him prior to his incarceration.
Our client instructs that the work that he is engaged in at the woodwork workshop involves the making of items for a charity in the Portlaoise area. We are instructed further that our client's attendance at the workshop and the diligence he applies to the task he takes on is to be recognised with a certificate of attendance to be granted to him.
Our client instructs that the most recent disciplinary matter against him occurred approximately 2 ½ years ago and he has therefore been trouble-free within the Prison in that time...
You will note from the instructions set out earlier that this is the first custodial sentence that our client has been required to serve and the first time that he has put himself in a position where a custodial sentence had to be imposed on him. Our client instructs that he had difficulty adjusting to prison life initially, something that he had not previously been used to, but he has now learned the coping skills necessary for his development within the Prison system. Our client instructs that he does not cause difficulty to the Prison Authorities.”
3.6 The respondent's decision was communicated to the applicant by letter dated the 16th April, 2014, addressed to the Prison Governor. The letter was signed by Ms Dolores Courtney of the Operations Directorate of the Prison Service and reads in full as follows:
Section 59(2) of the Prison Rules, 2007 allows for the discretionary granting of additional remission, up to one third as opposed to the standard rate of one quarter, where a prisoner has shown further good conduct through his engagement in authorised structured activity and where, as a result the prisoner is less likely to re-offend and will be better able to reintegrate into the community.
The Minister has made it clear that this concession will only be used sparingly and in the most exceptional cases.
Having considered the individual circumstances of your case, the Minister does not propose to use his discretion to grant you any additional remission on the basis that it is not demonstrated within your application that you have reduced your risk of re-offending."
3.9 In relation to the applicant's contention that he had done everything possible to become eligible, Mr Smyth averred that on the day after the applicant's committal to the Midlands Prison he was met by an Assistant Governor, Ms Teresa McCormack, for the purpose of a formal committal interview. It is said that at that meeting the new prisoner would have been advised of, amongst other matters, the services available to him. These included the Probation Service and the psychology, medical, chaplaincy and education services, as well as the workshops.
3.10 According to Mr Smyth,
3.12 Ms Courtney referred to a review of the applicant's case in April, 2013, when it was recorded that he was working in the carpentry shop and that he did not present an issue to prison management.
3.13 A further review in March, 2014 is summarised as follows:
Prison management said that he is high up the chain with the Limerick feud. They said that he was involved in an incident on D2 Division on 26 January 2014 where the prisoners started to riot- they damaged alarm sounders, fired bins onto the mesh and at officers and they broke windows and doors in the recreation area. Prison management said that they had difficulty trying to move Mr Ryan but there is no P19 [i.e. disciplinary process] associated with this on the Prisoner Management Information System (PIMS). I checked this with the Chief Officer who was on duty at the time. He said that in hindsight Mr Ryan should have received a P19 though his antics that evening were on the lesser end of the scale when compared to the antics of the others involved. Prison management further stated that Mr Ryan can be very vocal.
No concessions were recommended for Mr Ryan at the review meeting.”
3.15 The report quoted a newspaper report on the offences for which the applicant had been sentenced. It then referred briefly to what appears to be a communication of some sort from Henry Street Garda Station. This has been redacted in its entirety.
3.16 Finally, it is recorded that the applicant had had four P19s while in custody, the most recent of which was in August 2011.
3.17 The conclusion was that the Operations Directorate did not recommend the application:
3.20 In his affidavit, Mr Smyth averred that in assessing the application particular regard was had to the applicant's failure to engage with the Integrated Sentence Management ("I.S.M.") service, Probation Service and the psychology service.
The applicant furthermore did not engage with the Probation Service, despite opportunity to do so, and weight was placed in arriving at the impugned decision on his failure to do so...
The applicant attended the Prison school on only two occasions, since his incarceration in 2010, despite opportunity to do so on a frequent basis and in respect of any number of different courses and programmes...
3.22 The solicitor also noted that the applicant had the status of "enhanced" prisoner since late in the previous year, meaning that he had extra privileges including increased family visits and telephone calls.
3.23 The statement in the Operations Directorate report that the applicant was "high up the chain with the Limerick feud" was criticised as being, apparently, based solely on the applicant's alleged involvement in the events of the 26th January and was stated, on the basis of instructions, to be factually incorrect. It was asserted that, on the contrary, the applicant had pleaded guilty at the earliest opportunity in his case with a view to getting a transfer away from the factions in Limerick Prison. The applicant had not been questioned or disciplined in relation to the 26th January and had not lost any privileges.
3.24 It was asserted that the respondent could not properly have had regard to the newspaper clipping attached to the report. It was further submitted that the High Court should not have regard to the contents of the material supplied by Henry Street Garda Station since privilege was being claimed and the applicant could therefore not respond to it.
3.25 It is important to note that it was submitted on behalf of the respondent that the sentence
4.1 The core findings of Barrett J. were that
(ii) the respondent had not had regard to certain information to which he ought to have had regard, and
(iii) the respondent had imposed a pre-condition to, or fetter on, the exercise of his discretion under the Rule by stating that he would exercise it "sparingly and in the most exceptional circumstances." In effect, this amounted to a rewriting of the Rule and rendered the decision-making process irrational.
(iv) the respondent had preferred one form of authorised structured activity over others, without informing the general prison population or the applicant, which amounted to capriciousness, arbitrariness or injustice.
4.3 The information was also deficient in that it included the newspaper report suggesting that the applicant had been involved in a criminal feud in Limerick, which suggestion appeared to be based on his alleged involvement in a feud-related prison disturbance.
4.4 It was not clear whether or not the respondent had had regard to the fact that the applicant enjoyed "enhanced" prisoner status- if he had, there was a question mark over the relevance of his behaviour before attaining that status.
4.5 The averment that the remission criteria would have been explained to the applicant at his committal interview was dismissed as beggaring belief', while the applicant's averment that he was never aware of the ISM was accepted as credible.
4.6 Barrett J. considered that the interpretation offered on behalf of the respondent of the statement in the respondent's letter suffered from "the fatal deficiency" that it was simply not what the letter said.
4.7 It was held that, in circumstances where
• there was no evidence that any of the activities offered were deficient in achieving this objective, and
• the applicant had engaged in such activity to the fullest extent possible,
4.8 Barrett J. sought to place the exercise of the Minister's power under the Rule into its proper context by considering the purpose of the statutorily grounded remission regime. In this regard he referred to the judgment of Hogan J. in Byrne (A Minor) v. Director of Oberstown  1 ILRM 346, where remission was described as 'fundamental to the general operation of the criminal justice system." He also approved as being appropriate to the Irish sentencing and remission regimes the following passage from the judgment of Lord Phillips in the House of Lords decision in R. (Black) v. Secretary of State for justice  1A.C. 949 at p. 966:
5.1 The judgment of the Court is confined to a consideration of whether or not an order under Article 40.4 is the proper remedy for complaints as to decisions about remission.
5.2 The Court referred to its own jurisprudence on the criteria to be applied to habeas corpus cases where a person is in custody on foot of a court order, holding that an order under Article 40.4 was not appropriate unless it was demonstrated that there was an absence of jurisdiction, a fundamental denial of justice or a fundamental flaw attaching to the detention. As far as this applicant's case was concerned, the Court said:
Mr. Ryan's complaint about the procedures leading to the Minister's decision may be examined by judicial review, and not under Article 40, for the reasons explained earlier in this judgment. The special and extraordinary features of the Article 40 procedure are not required for the examination of this complaint."
6.1 For the purposes of this application the applicant has sworn an affidavit in which he confirms the contents of his solicitor's affidavits in the Article 40.4 proceedings and, for the most part, repeats them. He makes the further point that when the Supreme Court ordered his re-arrest, he contacted the Gardaí in Limerick and arranged to hand himself in on the following day. He states that he had not come to adverse Garda attention in the intervening period.
6.2 The affidavits on behalf of the respondent have been sworn by Ms Dolores Courtney, Mr Daniel Robbins (Governor of the Midlands Prison) and Ms Teresa McCormack (Assistant Governor of the Midlands Prison up to July 2014).
6.3 Ms Courtney, in large part, repeats the evidence given in Mr Smyth's affidavit. There is the same assertion that the applicant is wrong in thinking that his case was decided by reference to the criterion of "most exceptional circumstances", but, again, no light is thrown on the use of this concept in the letter.
6.4 Ms McCormack was the Assistant Governor who met the applicant for his committal interview. She says that she always explains to new prisoners the rules and regulations of the prison and the services available in the prison. She accepts that it is likely that the interview was short, especially as the applicant had transferred from another prison and would not therefore have required matters to be explained to the same degree as a person who had not been in prison before.
6.5 Mr Robbins is a relatively recent appointment to the Midlands Prison and did not have dealings with the applicant before his appointment. He makes a number of general observations on the topic of prison life, the availability of authorised structured activities and the steps to be expected of a prisoner attempting to rehabilitate himself.
6.6 Mr Robbins states, as a general proposition, that there are many prisoners who are anxious to address their offending behaviour and many who are not. The former tend to seek out assistance from the available prison services, whether by asking the Governor or other prison staff or approaching the service providers directly.
6.8 As far as the authorised structured activities are concerned, Mr Robbins says that
6.10 The fact that the applicant did not attend the ISM service or the Probation Service, in Mr Robbins's eyes, meant that
6.12 In conclusion, Mr Robbins says
7.1 It has been submitted on behalf of the applicant that, in circumstances where the order of the High Court in his case was overturned only on the basis of the inappropriateness of the remedy, this Court should regard the findings of fact and the analysis thereof by Barrett J. as binding in accordance with the principles of Irish Trust Bank v. The Central Bank of Ireland [1976-1977] ILRM 50 and World port Ireland Ltd. (In Liquidation) v. Companies Acts  IEHC 189.
7.2 The respondent submits that there is new evidence in the case that was not before Barrett J. and that, in any event, he fell into error in some of his findings.
7.3 For my own part, while accepting that the Supreme Court did not embark at all on a consideration of the facts and merits of the case, I feel that it is difficult, as a matter of law, to attribute binding force to a decision that has been overturned. This is particularly so when the court is engaged upon a fresh hearing of the issues, with a certain amount of new evidence. I therefore propose to treat the findings of Barrett J., by way of analogy with reasoned but obiter comments, as persuasive but not binding.
8. Relevant authorities
8.2 In Farrell v. Governor of Portlaoise Prison 2014 [IEHC] 392, the applicant had carried out work in the areas of food management and cleaning. He had also completed a series of classes of varying types. He would have been entitled to release on the 14th February, 2014 if the one third rate applied. The following portion of a letter to the applicant, dated the 14th February, 2014, is quoted in the judgment:
8.5 In Farrell, the respondent argued that the applicant had not engaged with the Probation Service, which ran a specific eight-week course in that prison dealing with offending behaviour, and that he continued to associate with other members of an illegal association. The Operations Directorate had, in his case, stated that it was for that reason not satisfied that he was less likely to re-offend and be better able to reintegrate into the community.
8.6 Hogan J. held that the single question permitted by Rule 59(2) was
8.8 Hogan J. referred to and approved the analysis of Barrett J. in the current applicant's case, holding that it effectively compelled the same conclusion in the case before him. He therefore concluded that the very fact the applicant had successfully participated in activities of the sort envisaged by Rule 27 must by definition have rendered him less likely to re-offend, and therefore that the Minister was bound to find that he had satisfied the requirements of Rule 59(2). There was, in the circumstances, no real discretion on the part of the Minister.
8.9 This court has been informed that the decision in Farrell is under appeal, but may have become moot.
8.10 The other decision delivered on the 5th August, 2014 was a judgment of Peart J. in the case of Keogh v. Governor of Mountjoy Prison  IEHC 402, another Article 40.4 enquiry. On the facts of the case, Peart J. distinguished Barrett J.'s decision because the applicant had failed to disclose to his solicitor and to the Court certain relevant information about events said to have occurred while he was on temporary release. However, it should be noted that, in response to a letter written by the applicant in November 2013, an official of the Irish Prison Service had advised the applicant that he should link in with the support services in the Training Unit (where he was then detained) and request a letter supporting his application.
8.12 Having ruled as he did, Peart J. went on to examine the operation of Rule 59(2), and expressed concern as to the lack of guidance offered by the Rule to the Minister. He made, inter alia, the following observation:
9. Discussion and conclusions
9.2 As Peart J. points out, attendance at a course does not guarantee such a result. It is a matter of ordinary life experience that in any setting, whether in prison or otherwise, individuals engaged in any particular course will bring differing attitudes to it, and may or may not derive benefit from it. It may, for example, be the objective of a language teacher to bring every member of the class to a particular standard of fluency- the question whether any particular member of the class has attained the status is something that can only be determined by objective assessment and not merely by reason of participation. In my view the rule reserved to the respondent the task of considering, based on the information provided to him, whether or not the applicant had in fact become less likely to re-offend as a result of engaging in the relevant activity. In making this determination he was entitled to have regard to other, relevant information tending to show whether or not the applicant did indeed intend to avoid criminal behaviour in the future.
9.3 I also have some difficulty with the adoption of the passage from Lord Phillips's judgement cited at paragraph 4.8 above. Lest it should be taken to mean that prisoners have, to some extent, a legitimate expectation of extended remission, I think it is important to point out that Lord Phillips was discussing the radically changed landscape brought about by legislation in the United Kingdom which, inter alia, introduced the concept of release on licence at a defined point of a determinate sentence as a significant feature of that country's penal policy. There is no equivalent in this jurisdiction, except in the very limited circumstances pertaining to prisoners serving life sentences. It remains the practice in Irish courts, as it was in the United Kingdom prior to 1992, that a sentencing judge does not advert to the prospect of remission in assessing the sentence to be imposed.
9.4 However, I do fully agree with Barrett J. as to the policy behind Rule 59(2), quoted at paragraph 4.9 above. I also agree (as, indeed does the respondent) that a prisoner who seeks extended remission is entitled to have his or her application considered in a fair and rational manner.
9.5 In particular, I agree entirely with the characterisation by Barrett J. of the letter sent by the respondent to the applicant. This letter has not been properly explained to the court in either the Article 40 proceedings or this judicial review application. There is nothing in the reports from the Operations Directorate to indicate that the officials considered that the test was whether or not the applicant had shown "exceptional circumstances" and, indeed, nothing like that concept appears in the letters sent by officials to the applicants in Farrell and Keogh. I do not consider it likely that Ms Courtney decided to include it in the letter of her own accord. It appears, rather, to have been a criterion adopted by the decision-maker, and one which, I am satisfied, did indeed involve a rewriting of the Rule for the reasons identified by Barrett J.
9.6 In these circumstances, it cannot be said with any confidence that the decision was made on the basis of the material put before the respondent. Instead, the court is compelled to the view that it was made on the basis of an impermissibly narrow construction of a rule that was intended to incentivise the broad prison population.