Neutral Citation  IEHC 499
THE HIGH COURT
[2015 No. 240 JR]
THE MINISTER FOR JUSTICE AND EQUALITY
JUDGMENT of Kearns P. delivered on the 24th day of July, 2015
In these proceedings the applicant seeks an order of certiorari quashing the decision of the respondent to refuse the applicant one third remission of his sentence under Rule 59(2) of the Prison Rules 2007 as amended, and for an order of mandamus directing the reconsideration by the respondent of the applicant’s application for one third remission of his sentence.
The applicant was convicted on the 2nd December, 2011 of membership of an unlawful organisation and was sentenced to five years imprisonment by the Special Criminal Court, which said sentence was back-dated to the 19th October, 2011.
These proceedings were heard during a sitting of the High Court in Kilkenny on the 7th July, 2015 at a time when the applicant’s release, without the enhanced remission sought in the application, was due to take place on the 18th July, 2015. That has now occurred. In the circumstances there existed no realistic opportunity for the Court to form a considered view of a number of issues sought to be canvassed. That being so, any ‘reconsideration’ of his application by the respondent (if so ordered by the Court) would, it was agreed, have taken this case outside the applicant’s release date. The case therefore has the characteristics of a moot, and submissions to that effect were made on behalf of the respondent at the conclusion of the court hearing. Furthermore, given that the decision to refuse remission was conveyed by letter dated the 27th February, 2015, the present judicial review proceedings, commenced as they were on the 11th June, 2015, were brought outside the time limit provided for by Order 84 of the Superior Court Rules and no exceptional circumstances were invoked to explain or excuse this failure.
In countering this submission, counsel on behalf of the applicant indicated that it was still open to the court to fashion some form of declaratory relief having regard to the contention that one of the reasons provided by the respondent was “irrational and unreasonable” in circumstances where prisoners in the position of the applicant on the E2 Landing of Portlaoise Prison had no access to some of the services relied upon by the respondent as one of the reasons for refusing to grant enhanced remission. It was argued that this rendered the decision as a whole ‘irrational’ in judicial review terms. It was contended on behalf of the applicant that there was a value both to the applicant (and to other prisoners in his position) in having this issue clarified and ruled upon by the court. All of the other grounds were, at the end of the hearing, effectively treated as moot points and are not further considered in this ruling.
By letter dated the 14th May, 2014 the applicant received a written response from Mr. Paul Mannering of the Operations Directorate of the Irish Prison Service advising that a determination on his application for one third remission would be made closer to the time when he became eligible for same, i.e., in or around February 2015. The letter invited resubmission of the application in December 2014 at which point it would receive “every consideration”. The letter continued:-
(i) demonstrate good behaviour by engaging in authorised structured activity, and
(ii) satisfy the Minister that as a result of (i) they are less likely to re-offend and would be better able to reintegrate into the community.
In considering whether a prisoner’s engagement in authorised structured activity is likely to lead to the prisoner being less likely to re-offend, the Minister will take into account a number of factors including public safety, the views of local prison management and the services with which the prisoner has engaged, the prisoner’s behaviour/conduct whilst imprisoned or during any periods of temporary release and the views of An Garda Síochána.”
For the purpose of his application, the applicant availed of a form provided for that purpose by the respondent.
In completing the application form, the applicant pointed out that whilst in custody he had completed various computer training courses, but pointed out that a significant range of work and training activities specified on the form were not available to prisoners on E Landing.
By letter dated the 20th October, 2014 the applicant wrote to the respondent to say that he had completed and returned the relevant sections of the application form for enhanced remission. He enclosed with his letter certificates outlining the various courses had had completed, stating that throughout his sentence, he had participated in all the available structured activity in a positive way in anticipation that he would qualify for one third enhanced remission. He stressed in particular the cleaning duties which he performed on E2 Landing, together with his educational attainments.
Representatives on behalf of prisoners on E Landing in Portlaoise Prison wrote to the Governor on the 29th January, 2015 requesting clarification of precisely what criteria required to be met to become eligible for enhanced remission. The letter pointed out that it was “not at all clear … what one has to do to meet this elusive standard” and the letter also pointed out that the application form for enhanced remission outlines a number of courses which are considered helpful in the context of applications for enhanced remission, but pointed out that none of these courses were available on E Landing.
Separately, by letter dated the 23rd February, 2015 the Prison Service wrote to the applicant to inform him that he was eligible under the pre-release programme to apply for four periods of temporary release totalling ten days on the last three months of his sentence from the 18th April, 2015. In fact, the applicant was released on temporary release from the 24th December, 2014 to the 29th December, 2014 and was further released on temporary release from the 12th May, 2014 to the 14th May, 2014.
However, by letter dated the 27th February, 2015, Mr. Mannering wrote to the applicant pointing out that his application for enhanced remission was refused. In relevant part that letter stated as follows:-
(i) the manner and extend to which the prisoner has engaged constructively in authorised structured activities;
(ii) the manner and extent to which the prisoner has taken steps to address his or her offending behaviour;
(iii) the nature and gravity of the offence to which the sentence of imprisonment being served by the prisoner relates;
(iv) the sentence of imprisonment concerned and any recommendations of the court that imposed the sentence;
(v) the period of the sentence served by the prisoner;
(vi) the potential threat to the safety and security of members of the public (including the victim of the offence to which the sentence of imprisonment being served by the prisoner relates;
(vii) any offence of which the prisoner was convicted before being convicted of the offence to which the sentence of imprisonment being served by him or her relates;
(viii) the conduct of the prisoner while in custody or during a period of temporary release;
(ix) any report or recommendation made by the Governor, the Garda Síochána, Probation Officer, or any other person whom the Minister considers would be of assistance in enabling him or her to make a decision on an application. The Minister having considered all of the above issues has decided to refuse your application as she is not satisfied that as a result of your engagement in authorised structured activity, that you are less likely to re-offend or better able to reintegrate into the community. The reasons for this decision are due to the nature and gravity of your offence, the potential threat to the safety and security of members of the public, limited engagement with authorised structured activity and no engagement with services to address your offending behaviour.”
The applicant contends that he was not notified of the necessity to engage with services to address his offending behaviour, nor were such services identified in the application form provided to and completed by him, nor did the letter of the 27th February, 2015 identify what those services might be, or which of them might best assist his case. Further, the applicant had in fact engaged heavily with such authorised structured activities as were available to prisoners in E Landing and to refuse enhanced remission at least in part on the basis of a “limited engagement with authorised structured activity,” was irrational and erroneous in circumstances where certain of such activities were not available to prisoners on E Landing at Portlaoise Prison.
The respondent's reasoning in this regard appears from a letter written by the Prison Governor to the representatives of E2 Landing prisoners regarding the application of the Prison Rules. The last paragraph of that letter states the following:-
On this point the statement of opposition contends as follows:-
He contends therefore that the decision to refuse the applicant further remission was entirely reasonable and in accordance with the relevant statutory criteria.
It was argued that while the prison rules make it clear that engagement with authorised structured activities does not create any entitlement to enhanced remission, the Minister in furnishing reasons for refusal cannot rely upon a reason which is incapable of being fulfilled.
On this only surviving issue in the present case, counsel for the respondent argued that this factor was not sufficient to render the respondents decision in this case “capricious, arbitrary or unjust” and the range of activities engaged in, be they multiple or few, was only one of many factors to be considered by the Minister and even if the range of services in Portlaoise E Landing was less than in other locations, this did not per se entitle the applicant to enhanced remission. It was in any event at all stages open to the applicant to request a transfer to some other part of the prison, or indeed another prison, if he was willing to forego his association with other republican prisoners. This he was not prepared to do and in such circumstances could not argue successfully for the contention advanced
However, the Court observed at the hearing and now repeats that this application was brought too late in time and well outside the time limits provided for by Order 84 of the Superior Court Rules. The revised terms of Order 84 (SI 691/2011) state that the court should only extend the period within which an application for judicial review can be made where it is satisfied that there is good and sufficient reason for doing so and the circumstances that resulted in the failure to make the application for leave within the period were either outside the control of the applicant, or could not reasonably have been anticipated by the applicant for such extension. No application for that purpose was made in this case. The respondent’s decision to refuse the grant of greater remission was communicated to the applicant on the 27th February, 2015, but leave to bring judicial review proceedings was only sought on the 11th June, 2015, virtually on the eve of the applicant’s scheduled release, and the respondents are, in the view of the Court, entitled to take this delay point and rely upon it in this case. This Court has expressed in the strongest terms its intolerance of late applications for judicial review in its recent judgment in Coton (No.1) v. D.P.P. (Unreported, High Court, 21st May, 2015). It has been a common occurrence for late applications to be brought outside the time limits with no request for the appropriate extension or the tendering of any excuse or explanation for delay. This is such a case.
Having regard to the nature of the relief being sought in this case it was incumbent upon the applicant and his advisors to move with the greatest degree of promptness which they simply failed to, notwithstanding the well publicised incidence of multiple such applications being unleashed on the High Court following the decisions in Ryan v. Governor of Midlands Prison  IEHC 338 and Farrell v. Governor of Midlands Prison  IEHC 392. Both of those decisions have been now overturned by the decision of the Court of Appeal in McKevitt v. Minister for Justice  IECA 122. On the ground of delay alone the Court would exercise its discretion to refuse to grant relief in this case.
Lest this view be mistaken, the Court will nonetheless briefly address the ground argued at the hearing (the points on mootness and delay having not been advanced at the hearing by the respondent until the case was virtually over).
The applicant in this case is housed with other prisoners convicted of similar type offences and although Mr. Mannering makes the point that some such prisoners have opted to move to different areas in the prison or to different prisons where such services could be availed of, he does not dispute that certain activities which would obviously be reckonable when exercising discretion are not available to those who insist on remaining on the E Landing.
Counsel for the respondent argues that the solution to this difficulty lies in the applicants own hands, in that he can request a transfer to another part of the prison or to another place of detention where the same difficulty does not arise.
There is no evidence in this case that the applicant ever sought such a transfer. Rather he was content to base his application solely on the range of authorised activities which were accessible to those on E Landing.
There is no evidence of a request having been made by the applicant for access to additional services, or of such services being refused, either or both of which factors might have given the applicant’s contentions on this point some traction. He was not denied total access to structured activities and it would be absurd to suggest that an applicant for enhanced remission must have available to him every single structured activity mentioned in the application form and have them delivered on site at the location of his choosing when he can easily enlarge his range of engagement by opting to disassociate from prisoners in the same category (as others have done) and thereby strengthen his case. It is difficult to see how any conclusion could be arrived at that the respondent, who had a fair sample of what the applicant had achieved in a range of structured activities in which he had engaged, had fettered her discretion or behaved either irrationally or capriciously to such a degree that the court should intervene to overrule the decision or hold that her discretionary powers had not been exercised fairly.
Ultimately the Court is satisfied that the decision dated the 27th February, 2015 clearly sets out that the Minister considered all of the considerations elaborated in Rule 59(2)(a) of the Prison Rules and the Court has not been persuaded on the facts of the present case that the applicant has established that he sought to engage with authorised structured activities to such a degree that would invalidate the refusal on grounds of irrationality. In short, the threshold set down in McKevitt v Minister for Justice for intervention by the Court to interfere with the discretionary exercise of executive power has not been met in this case.
The Court would therefore refuse the relief sought in this application.