High Court of Ireland Decisions

2000 No. 786 JR

1. The applicant is a prisoner in Ireland. He was convicted of the offence of murder in the United Kingdom in November, 1990 and sentenced subject to a mandatory life tariff of twelve years. In December, 1998 he was transferred to prison in Ireland following an earlier Order of the High Court with the consent of the second named respondent.

2. In these proceedings the Applicant has challenged a decision of the first named respondent (hereinafter referred to as “the Group”) made on the 29th September 2000 refusing a request for legal representation at the hearing of the review of his sentence in October, 1990. The applicant has further challenged the decision of the Group, made on the 2nd October 2000, whereby it refused to disclose certain documents which were before it.

3. Both sides agree that the two net issues in these proceedings are:-

(1) Whether the applicant has the right to be legally represented at a hearing of the Group, and

(2) Whether the applicant had the right to disclosure of the material that is going to be considered at the hearing of the Group.

4. The legal framework for a remission of sentence is fully set forth in the written submissions of the applicant. In short, the power to remit or commute a sentence is an exercise of constitutional power under and by virtue of Article 13.6 of the Constitution. That power is primarily invested in the President but may be exercised by the Government which may, in turn, delegate it to the second named respondent (hereinafter referred to “the Minister”).

5. The Group was established in 1989 to advise the Government on the administration of long term prison sentences. It has no statutory function and its functions are purely advisory. The Group makes no binding decisions but makes representations to the Minister. Its been established that, as a matter of practice, the Minister has not acted on approximately twenty per cent of such representations.

6. The applicant became aware that the Group was going to consider his case in October, 2000. Since September, 2000 the plaintiff had the benefit of the advice of Messrs. MacGuill & Co. Solicitors who were acting on his behalf. The said firm of Solicitors sought copies of the reports submitted to the group and sought representation before the Group. Both requests were refused.

7. It has, inter alia , been submitted on behalf of the respondent that the Minister established the Group on a purely concessionary, ex gratia basis, that the applicant has no right to be released from prison and that if there was no review group he could have no cause of complaint. I do not accept that it follows from this that the applicant is not entitled to fair procedures and I am satisfied that the same cannot be excluded.

8. I accept that the applicant must be, prima facie, entitled to sight of all documents which are considered by the Group in coming to a decision on a recommendation to the Minister. The same is not in any way an onerous requirement and is proportionate. It is perfectly reasonable of the respondents to argue that a certain document may be privileged and that it is in the public interest that the same should not be disclosed. What the Group has, however, done in effect is to seek to have a “blanket” ban on disclosure of all documents. I hold that the said documents should be disclosed but subject to the right of the Group to claim privilege in respect of any individual documents for good reason.

9. As indicated, the applicant has at all material times had the benefit of independent legal advice and representation and his entitlement thereto is not at issue. What is at issue is whether he should be entitled to representation at an oral hearing before the Group. I do not believe that the same is necessary to satisfy the requirements of fair procedures. The function of the Group is purely an advisory one and it exercises no power akin to a disciplinary body. It meets for the purpose of coming to a recommendation in a non adversarial way. To introduce full legal representation at a formal hearing would, in my view, be disproportionate and would have the effect of changing the whole character of the procedure set up by the Minister.

10. It should, for the sake of completeness, be noted that since these proceedings have been instituted the executive has decided to establish a Parole Board on an interim basis and that, while the same has not yet got a statutory basis, it has replaced the activities of the Group and will have a wider remit than the Group.

11. While, if required, I shall hear counsel on the particular orders to be made it seems to me that, on the basis of the foregoing, I should grant an order of Certiorari in terms of paragraph 3 of the notice of motion and a declaration in terms of paragraph 4 thereof with the proviso that the same is subject to the right of the Group to claim privilege. It seems that I should also make an order in terms of paragraph 6 of the notice of motion. I have not heard the submissions in relation to the claims for damages and, if required, I shall do so.