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Cite as: [2014] IEHC 392

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Judgment Title: Farrell -v- Governor of Portlaoise Prison & Ors

Neutral Citation: [2014] 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: [2014] IEHC 392

THE HIGH COURT

[2014 No. 1231 SS]

IN THE MATTER OF AN APPLICATION PURSUANT TO

ARTICLE 40 OF THE CONSTITUTION

BETWEEN/

NIALL FARRELL

APPLICANT

AND

GOVERNOR OF PORTLAOISE PRISON, THE IRISH PRISON SERVICE, MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

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:

“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.”

6. The phrase “authorised structured activity” is effectively defined by Rule 27(2) of the 2007 Rules and this provides that:

“. . . each prisoner may, while in prison, engage or participate in such structured activity as may be authorised by the Governor (in these Rules referred to as “authorised structured activity”) including work, vocational training, education, or programmes 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.”

7. The applicant and his solicitor have both been for some months engaged in correspondence with the Minister and the Irish Prison Service regarding the question of his entitlement to enhanced remission. On 14th February 2014, Mr. Paul Mannering, an Assistant Principal Officer, replied by letter to the applicant’s queries regarding one third remission. The letter states in material part:

“An essential part of the criteria for rewarding one third remission is that applicants engage in offence focussed work which in turn should lead to a reduced risk of re-offending. The Minister considers committed and concrete engagement with the therapeutic services within the prison, in the context of offence focused work, [to be] an essential requirement for the granting of one third remission.”

8. Mr. Mannering invited the applicant to submit evidence “of offence focussed work (to be supported by the proper documentations) in order for your application to be considered.” The applicant responded on 25th March 2014 detailing the various courses which he had taken in prison. His solicitor wrote on 4th June 2014 to the Governor of Portlaoise Prison requesting details of the therapeutic services which were available to the prisoners on the E2 landing. The Governor responded on 13th June 2014 saying:

“The therapeutic services available at Portlaoise Prison are as follows:

Addiction counselling

Psychology

Probation

Education

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.”

9. Further correspondence followed, but on 17th June 2014 the applicant was informed that the Minister, having considered his application, had decided to refuse his application for one third remission on the ground that he did not “meet the criteria as set out in Rule 59(2).” The writer continued:

“In considering whether a prisoner’s engagement in authorised structured activity is likely to lead to a 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 while imprisoned or during any period of temporary release and the views of An Garda Síochána.”

10. A further letter was received from the Operations Directorate of the Irish Prison Service on 7th July 2014. This stated that:

“An essential part of the criteria for rewarding one third remission is that the applicants engage in offence focussed work which in turn should lead to a reduced risk of re-offending. The Minister considers committed and concrete engagement with therapeutic services within the prison in the context of offence focused work, an essential requirement for the granting of one third remission.”

11. The applicant was then requested to submit evidence of “offence focused work (to be supported with the proper documentation) in order for your application to be considered.” Given that the applicant contended that it was not clear what was meant by the term “offence focused work” and as he maintained that he was in any event entitled to be released on the ground that he already met the enhanced remission requirements for the purposes of Rule 59(2) by satisfactorily engaging in authorised structured activities, the present proceedings were commenced.

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:

“Although Mr. Farrell has been a well disciplined prisoner during his time in Portlaoise and engaged with the education services in the prison, due to a lack of engagement with the Probation Service and the lack of any work which would assist with reducing his offending behaviour, Operations Directorate are not satisfied that the prisoner is less likely to re-offend and be better able to reintegrate into the community.”

15. It is not, however, clear that Mr. Farrell was ever informed that participation in particular structured activities is not in itself enough and that it was also necessary to participate in other types of courses or to engage with the Probation Services and to disassociate with those other professing to be “political” prisoners by virtue of their association with an illegal organisation. It is against this general background that the application falls to be considered.

The power to remit sentences and Article 13.6 of the Constitution
16. Article 13.6 of the Constitution provides:

“The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities.”

17. There is no doubt at all but that the power to remit a sentence is entirely an executive function. Yet the fact Article 13.6 envisages that the power can be conferred by law on other authorities also tacitly implies that the exercise of this power can be regulated by law. Section 35(2)(f) of the Prisons Act 2007 enables the Minister for Justice and Equality to make rules providing for the remission of a portion of a prisoner’s sentence. Rule 59 of the 2007 Rules accordingly regulates the power of remission and, in the manner contemplated by Article 13.6, allows for the devolution of this power to the Minister.

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)
19. What, then, are the essential elements of Rule 59(2)? First, a prisoner must have shown further good conduct “by engaging in authorised structured activity.” Second, the Minister must be satisfied “that, as a result, the prisoner is less likely to re-offend and will be better able to reintegrate into the community.” (Emphasis added).

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 [2014] 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:

“......was never advised, nor does it appear from the evidence before the court that prisoners are generally advised, that despite the fact that, pursuant to Rule 27(2) of the Prison Rules, all authorised, structured, in-prison activities have as their equal aim making a prisoner “less likely to re-offend or better able to re-integrate into the community”, some such activities are considered preferable to others. No party before the court has contended that any of the structured prison activities offered by the Irish Prison Service are, in and of themselves, in any way deficient in achieving their stated aim and thus it follows logically that, by participating in the authorised structured activities in which he did, Mr. Ryan must have rendered himself less likely to re-offend and so better able to re-integrate into the community.”

25. As I have just observed, the facts of Ryan were very similar to the present case. In that case, the applicant had participated in a woodwork workshop on a full-time basis (for which he had received a commendation). He had not, however, participated in a range of other courses, including anger and stress management courses and he had not engaged with the Probation Service. Nor had he participated in any addiction courses, but as he did not suffer from such problems, then, as Barrett J. noted, “he can hardly be criticised...for a failure to engage with addiction counselling.”

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:

“...there is only one logical conclusion that the Minister could have reached in the context of the application made by Mr. Ryan pursuant to Rule 59(2), namely, that it has been demonstrated that Mr. Ryan, through his participation in authorised, structured, in-house activities, was less likely to re-offend and so better able to re-integrate into the community post-release, which conclusion yields the consequence that the Minister’s denial of additional remission to the Minister was unjust.”

28. The decision in Ryan effectively compels the same result in the present case for precisely the same reasons. It is plain that the Minister has had regard to a number of irrelevant considerations and, critically, has failed to apply the correct test contained in Rule 59(2). First, as Barrett J. pointed out, Rule 59(2) does not distinguish between different types of structured activities. All that is required that the structured activities in question are authorised. Second, a prisoner cannot be faulted or disadvantaged by reason of the fact that he or she has not participated in particular types of such activities - such as engagement with the Probation Service or participation in “offence focused work” - provided that he or she has otherwise successfully participated in authorised structured activities. Third, if there were indeed in practice a requirement that an applicant must participate in particular types of courses (such as, for example, “offence focused work”), this should have been explained to the prison population. Just as in Ryan, there is no evidence that this was ever done. Indeed, as the response from the Governor of the 13th June 2014 in the present case made clear, prisoners were free to engage with such of the therapeutic services as met their needs. Fourth, in any event, if there were indeed such a requirement, this would amount de facto to an amendment of the 2007 Rules. As we have just seen, Rule 59(2) does not distinguish between different types of authorised structured activities and all have equal value so far as the enhanced remission is concerned. Absent, therefore, a formal amendment of Rule 59 which was duly promulgated and published, such an administrative practice purporting to stipulate some ex ante requirement of this kind would be unlawful.

Conclusions
29. In the present case, it is not in dispute but that the applicant participated successfully in authorised structured activities of the kind contemplated by Rule 59(2). As Rule 27(2) makes clear, the very definition of authorised structured activities contained in that sub-Rule presupposes that by participation in such activities the applicant was less likely to re-offend as a result. Just as in Ryan, therefore, the very fact that the applicant successfully participated in these activities must by definition have rendered him less likely to re-offend.

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.

31. It follows, therefore, that as the applicant is currently in unlawful custody, I must immediately direct his release from that custody pursuant to Article 40.4.2 of the Constitution.

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