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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> H.S. v Minister for Justice (Approved) [2025] IEHC 271 (13 May 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC271.html
Cite as: [2025] IEHC 271

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THE HIGH COURT

JUDICIAL REVIEW

[2025] IEHC 271

RECORD NO. 2024 / 399 JR

 

BETWEEN

 

H.S.

 

APPLICANT

 

AND

 

MINISTER FOR JUSTICE

 

RESPONDENT

 

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 13th day of May, 2025

 

INTRODUCTION

1.      The Applicant challenges the Minister's decision to refuse his application for enhanced remission pursuant to Rule 59 of the Prison Rules, 2007 (SI 252 of 2007 as amended by SI 385 of 2014) (hereinafter "the Prison Rules"), principally on the basis that the decision was not adequately reasoned but also on the basis that it was not supported by the material before the Minister and is therefore unreasonable in law.

 

2.      A notable feature of this case is that the sentence in respect of which the Applicant applied for enhanced remission has expired.  He is no longer in custody with the result that it is contended on behalf of the Minister that the within proceedings are moot.

 

 

BACKGROUND

3.      The Applicant was born in 1960.  It was contended that he had a dysfunctional childhood and as a young man he developed a dependency on alcohol. In 2003, he committed a serious sexual offence against an adult woman to which he pleaded guilty and was sentenced to 16 years in prison.  He did not appeal against that sentence.

 

4.      While serving his sentence, the Applicant engaged extensively with the psychological and rehabilitative services available to him within the Prison Service.  He completed the Building Better Lives Sex Offenders' course along with levels 1, 2 and 3 of an Alternatives to Violence program and an anger management course.  In addition, he engaged in approximately 70 therapy sessions with the prison psychologist.  He further engaged with the 12 step Alcoholics Anonymous (hereinafter "AA") programme.  He also pursued third level education completing both undergraduate and master's degrees, performing to a very high level.  He converted to Sufism and, it is claimed, developed and nurtured bonds with his local faith community in Portlaoise.  He also engaged in work and other constructive activities within the prison. 

 

5.      In recognition of his good behavior and participation in structured activities, the Applicant was upgraded to the enhanced level of privileges within the prison system.

 

6.      As the Applicant was nearing the end of his sentence, two of his younger sisters made complaints of historical sexual abuse against him dating back to the 1970s and 1980s at a time when the victims were minors and the Applicant was aged 15 to 20 years old.  He was charged with these offences.

 

7.      After finishing his 16-year sentence in 2018, the Applicant was further remanded in custody on the charges arising from complaints made by his sisters.  He was released following a successful application for prohibition but when the prohibition order was overturned following appeal on behalf of the DPP to the Court of Appeal, he was granted bail on restrictive terms.  He was at liberty for approximately 2 and a half years from March, 2019, to September, 2021.

 

8.      During the time that the Applicant was at liberty, he secured private rented accommodation.  When he was on bail, he adhered to all bail conditions and to the requirements arising from his designation in 2006 as a sex offender.  He did not come to the adverse attention of the Gardaí.  While at liberty, he remained a regular attendee at AA meetings and at his local mosque and established a marital family with a fellow member of his faith community.

 

9.      On the 29th of September, 2021, the Applicant was convicted after trial in the Central Criminal Court of rape and numerous counts of indecent assault against his two younger sisters, when they were minors, more than forty years previously.  He was then re-admitted to custody.

 

10.  On the 2nd of March, 2022, the Applicant was sentenced to an effective total of five years imprisonment in respect of the offences against his minor sisters.  The sentences were backdated to the 2nd of September, 2020, to take account of the time already spent on remand. The Central Criminal Court made an order for post release supervision pursuant to the Sex Offenders Act, 2001.

 

11.  On the 20th of November, 2023, while in custody in Arbour Hill Prison, the Applicant made an application to the Minister for enhanced remission in accordance with Rule 59(2) of the Prison Rules using the Form available for this purpose, supported by a letter.  He furnished the Minister with information about his engagement in authorised structured activities while in prison and the effect of that engagement upon him.  He referred to the courses about to be completed (FETAC Level 5 in Sound Engineering and Level 3 in German) and his extensive educational achievements in prison since 2006 (including a B.A. (Hons) and M.A.) in consequence of which he claimed to be better qualified for employment and to have much improved self-confidence and self-esteem and a better understanding of his duties as a citizen.  He relied on these factors as supporting a conclusion that he would be less likely to re-offend and better able to re-integrate into the community.  He stated:

 

"as a result of my work on the building better lives and my extensive work with Dr. Cora Bruton using Schema therapy I gained an insight into the causes of my offending and in particular during and as a result of this Schema therapy I dealt with the trauma particularly early childhood trauma that was at the basis of my offending."

 

12.  The Applicant further referred to the fact that the obvious change in his behaviour and character over the previous ten years was and must have been observable to the prison authorities and was evidenced by the period from April, 2019, to September, 2021, when he was not in custody.

 

13.  The application for enhanced remission was acknowledged by letter dated the 18th of December, 2023. It was noted that if he was granted enhanced remission, the Applicant's new release date would not be until January 2024 (some two weeks later) and he was informed that a decision would be made closer to this date.

 

14.  The Applicant wrote a reminder letter on the 2nd of January, 2024, pointing out that were he to be granted one third enhanced remission then his release date would have been the 1st of January, 2024.  He requested a decision on his application.

 

15.  The Applicant's reminder letter appears to have crossed with the Minister's decision letter.  On the 2nd of January, 2024, the Minister, by way of delegation to a member of the Operations Directorate of the Irish Prison Service, decided to refuse the application for enhanced permission made by the Applicant.

 

16.  On the 3rd of January, 2024, the Applicant was furnished with a decision letter from the decision maker at the Operations Directorate of the Irish Prison Service.  The letter outlined the relevant criteria to be considered by the Minister under Rule 59(2) in determining an application for enhanced remission.  The letter went on to state that:

 

"the Minister, having considered your application for enhanced remission, including all materials supplied in support of the application and the matters outlined above has decided to refuse your application for enhanced remission under Rule 59(2) of the Prison Rules.  The Minister, having had due regard to the nature and gravity of your offence and the manner and extent to which you have taken steps to address your offending behaviour is not satisfied that you are less likely to re-offend and are better able to re-integrate into the community."

 

17.  On the 4th of January, 2024, the Applicant wrote to the Governor of Arbour Hill Prison seeking copies of the evidence relied upon in deciding his application.  He also sought details of any appeals process and the identity of the decision maker.  He did not receive a response.

 

18.  On the 14th of March, 2024, the Applicant's solicitors wrote to the Operations Directorate of the Irish Prison Service in relation to the refusal of enhanced remission.  In this letter, the Applicant's solicitors sought copies of any information and/or documentation provided to the Minister by third parties and/or an elucidation of the reasons for the decision. Again, no response was received at that time.

 

19.  On the 21st of March, 2024, papers in an application for judicial review were filed in the Central Office of the High Court.  Under the Rules of the Superior Court applicable at that time (since amended) the filing of papers in the Central Office did not suffice to stop time running.  Counsel informed me that that the proceedings were opened before the High Court on or about this date to "stop the clock".  This was necessary because the decision to refuse had been taken almost three months earlier and a three-month time limit applied under Order 84 rule 21(1) of the Rules of the Superior Court.

 

20.  On the 25th of March, 2024, after these proceedings had been filed in the Central Office, a member of the Operations Directorate of the Irish Prison Service responded by enclosing the decision letter stating:

 

"The decision was taken at assistant principal level on behalf of the Minister.  I enclose the letter which was sent to your client which should clarify the matter."

 

21.  The letter did not provide any further information or elucidation of the reasons for the decision and the enclosed letter referred to was merely a further copy of the decision letter dated the 2nd of January, 2024 and already available to the Applicant's solicitor.

22.  On the 13th of May, 2024, the Applicant, having made earlier application to "stop the clock" having regard to the requirement to seek relief within three months under Order 84, was granted leave to institute these proceedings (Order ex parte of Hyland J.) with a return date on the originating Notice of Motion of the 11th of June, 2024. The Applicant was granted leave to seek an order of certiorari quashing the Minister's decision to refuse enhanced remission and declaratory and consequential relief.  Importantly, counsel for the Applicant confirmed that no application was made for an early return date or priority even though the Applicant's release date, without enhanced remission, was imminent.  She indicated a belief that there was no reality to the case being heard in advance of his anticipated release date to explain why no application was made.

 

23.  On the 1st of June, 2024, the Applicant received standard one quarter remission.  This was provided automatically to the Applicant by operation of Rule 59(1) of the Prison Rules.  His sentence, therefore, came to an end and he was released from custody.

 

24.  On the 4th of July, 2024, the Applicant obtained an order from the Central Criminal Court suspending his post release supervision conditions so that he could relocate to the United Kingdom.  At the time of hearing before me, he was not residing in the State.

 

LEGAL FRAMEWORK

25.  The principles governing the awarding of remission are contained within Rule 59 of the Prison Rules.  In sum, prisoners sentenced to a term of imprisonment qualify for one quarter remission (commonly referred to as "ordinary" or "standard" remission) based on good conduct (Rule 59(1)).

 

26.  Further, prisoners may also receive remission of greater than one quarter but not exceeding one third of their sentence based on engagement with authorised structured activity if they satisfy the Minister that they are less likely to re-offend and will be better able to re-integrate into the community (Rule 59(2)(d)(i)).  Authorised structured activity is defined in Rule 27(2) of the Prison Rules as structured activity authorised by the Governor including work, vocational training, education or programmes intended to increase the likelihood that a prisoner, when released from prison, will be less likely to re-offend or better able to re-integrate into the community.

 

27.  An application for enhanced remission by a prisoner who has engaged in authorised structured activity shall not be made earlier than 6 months prior to the date on which the prisoner would be released if enhanced remission of one third of the prisoner's sentence were to be granted to him or her (Rule 59(2)(c)).  This limits the window of opportunity for an application to be made and decided and any negative decision challenged due to the proximity of the release date for a prisoner qualifying for ordinary remission.

 

28.  Although the Minister's power to grant enhanced remission discretionary power if satisfied based on engagement with authorised structured activity that a prisoner is less likely to re-offend and will be better able to re-integrate into the community, it is not unqualified and the Minister is obliged to take into prescribed factors into account when arriving at a decision.  These factors are set out at Rule 59(2)(f) and include as follows:

 

 

 

                                                                    i.            the manner and extent to which the prisoner has engaged constructively in authorised structured activities (Rule 59(2)(f)(i));

                                                                  ii.            the manner and extent to which the prisoner has taken steps to address his or her offending behaviour (Rule 59(2)(f)(ii));

                                                                iii.            the nature and gravity of the offence to which the sentence of imprisonment being served by the principal prisoner relates (Rule 59(2)(f)(iii));

                                                                iv.            the sentence of imprisonment concerned and any recommendations of the court that imposed the sentence (Rule 59(2)(f)(iv));

                                                                  v.            the period of the sentence served by the prisoner (Rule 59(2)(f)(v));

                                                                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) (Rule 59(2)(f)(vi));

                                                              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 (Rule 59(2)(f)(vii));

                                                            viii.            the conduct of the prisoner while in custody or during a period of temporary release (Rule 59(2)(f)(viii));

                                                                ix.            any report or recommendation made by the Governor or the Garda Siochána or a probation officer or any other person whom the minister considers would be of assistance in enabling him or her to make a decision on such an application (Rule 59(2)(f)(ix).

 

 

29.  Pursuant to Rule 59(2)(d)(ii) of the Prison Rules, if the Minister decides to refuse an application for enhanced remission, he is required to notify the prisoner, as soon as practicable, of his decision "and the reasons for the refusal".  Rule 59(2)(e) requires that this notification be in writing. 

 

DISCUSSION AND DECISION

 

Whether Decision inadequately reasoned or demonstrably unreasonable

30.  From the background facts and circumstances outlined above, it is apparent that the Applicant's level of engagement with educational and therapeutic services whilst in prison was exceptional.  Indeed, such was his level of engagement over the course of his period of incarceration dating back to 2006, his counsel submitted (without contradiction from counsel of the Minister) that it would have been difficult to for him to engage much further as he had already completed almost every course available to him including obtaining graduate and post-graduate qualifications and awards.

 

31.  It was also submitted and I accept that the Applicant was able to demonstrate an ability to re-integrate into the community without re-offending because he was at liberty for a two-and-a-half-year period during which he continued to adhere to his AA Programme, married and secured accommodation without, it seems, coming to any further adverse Garda attention.  These matters were detailed by the Applicant in presenting his application for enhanced remission and do not appear to be in dispute.

 

32.  It has been confirmed on behalf of the Minister on affidavit that in reaching the decision to refuse enhanced remission, individual consideration was given to the application made by the Applicant having regard to all of the material supplied by him  in support of the application and all of the matters set out in Rule 59(2) of the Prison Rules, 2007 including each of the matters referred to in Rule 59(2)(f).  Unlike the position in many of the authorities opened to me in legal argument, no reference was made in correspondence or on affidavit to any additional material in the form of reports from the Garda Siochána or the Probation Services or others.

 

33.  Notwithstanding the lack of response to correspondence requesting that any material relied upon in the decision to refuse be disclosed, I am satisfied that were a report or third-party communication considered by the decision-maker in making the decision, its existence would have been disclosed both in the decision letter and on affidavit in response to these proceedings further to the duty of candour on the decision-maker in opposing proceedings of this nature.  I therefore concur in counsel for the Applicant's surmise that the fact that none are referred to should be understood to mean that no such reports or communications were before the decision-maker.  I note that counsel for the Minister did not object to a submission to this effect made on behalf of the Applicant.

 

34.  The only additional documents exhibited by the decision-maker in his replying affidavit to supplement the application form completed by the Applicant and correspondence in respect of his application is an extract from the prisoner Information Management System setting out the details of the sentences imposed (including the details of the previous sentence imposed in 2006) and the Order of the Central Criminal Court in respect of the historic offences against the Applicant's then minor sisters.

 

35.  Although as noted above, it was confirmed on affidavit of behalf of the Minister, in line with the terms of the decision letter, that account was taken of each of the matters referred to in Rule 59(2)(f) when making the decision to refuse, it was further confirmed that the decision maker was aware of the nature and gravity of the offences for which the Applicant was sentenced on the 2nd of March, 2022.  Additional information confirming that account was taken specifically of the fact that the Applicant was serving a five-year sentence for a rape offence; that the two victims were the Applicant's sisters; that the offences occurred on dates in the 1970s and 1980s; and that the victims were minors at the time that the offences occurred was also given on affidavit.  These factors had not been elaborated upon in the decision letter, but it has not been suggested on behalf of the Applicant that these additional details constitute an impermissible attempt to elaborate on the reasons for the decision.  In any event, the Affidavit gives a correct description of known and undisputed facts.

 

36.  It was further confirmed on behalf of the Minister that account was taken of the manner and extent to which the Applicant had engaged in authorised structured activities during his time in custody serving both the 2006 sentence and the 2022 sentence and the manner and extent to which the Applicant had taken steps to address his offending behaviour, including the fact that he was an enhanced prisoner; his involvement with the education services, including the undertaking of sound engineering and German courses, a bachelor of arts degree in  humanities and English, and a master of arts degree in Islamic studies; his engagement with the psychology service, including sessions at Arbour Hill, completion of the Building Better Lives Sex Offenders programme, 70 sessions of Schema therapy, alternatives to violence programme levels 1, 2 and 3; completion of anger management courses; and engagement with addiction counselling services including weekly attendance at AA. 

 

37.  It might be observed that none of these factual matters had been referred to by the decision-maker in his decision letter but there was no objection taken on behalf of the Applicant to thus stating the identified relevant factual matters and it is accepted that these factual matters are accurately stated on behalf of the Minister and are not in controversy.  Importantly, the consideration of and weight attaching to these factors in applying the statutory test is not elaborated upon.

 

38.  In the replying affidavit filed on behalf of the Minister it was further confirmed that having considered and weighed up "all relevant matters", it was decided to refuse the application for enhanced remission in accordance with Rule 59(2) of the Prison Rules because he was not satisfied, having regard to the matters set out in Rule 59(2)(f) of the Prison Rules and specifically to the nature and gravity of the offences committed by the Applicant and the manner and extent to which he had taken steps to address his offending behaviour - that the Applicant was less likely to re-offend and was better able to re-integrate into the community.

 

39.  The statement of reasons repeated on behalf of the Minister on affidavit replicates the reasoning apparent in the decision letter in almost identical terms.  In its terms, the statement of reasons is confined to reliance on two of the nine matters, without more, which the Minister is required to consider under Rule 59(2)(f) specifically:

 

 

                                                                    i.                        the manner and extent to which the prisoner has taken steps to address his or her offending behaviour (Rule 59(2)(ii)); and

                                                                  ii.                        the nature and gravity of the offence to which the sentence of imprisonment being served by the prisoner relates (Rule 59(2)(iii)).

 

40.  While the nature and gravity of the offences are detailed in the replying affidavit in a manner not evident in the decision letter itself, the replying affidavit provides a correct factual summary of the offence, conviction and sentencing orders.  However, in neither his letter nor on affidavit is it explained what it was about the Applicant's steps to address his offending behaviour or indeed the nature and gravity of his offences that it was considered weighed against a finding that the Applicant was less likely to re-offend and supported a conclusion that he was not better able to re-integrate into the community.  This begs the question as to whether the decision letter contained an adequate statement of the reasons to refuse, the primary issue pursued on behalf of the Applicant in these proceedings.

 

41.  The challenge in these proceedings is the latest of a long series of similar cases in which the proper approach to an application for enhanced remission has been considered by the Superior Courts.  For this reason, there is a degree of helpful consensus between the parties in relation to the applicable test and the decision-making process.  It is acknowledged that enhanced remission is a privilege, not a right and that in considering an application for enhanced remission the Minister is exercising an executive rather than an administrative function.

 

42.  The parties further agree that it is now established that the proper construction of Rule 59(2) is one which obliges the Minister, once satisfied that a prisoner has shown good conduct by engaging in authorised structure activity, to then consider whether because of such participation the prisoner is less likely to re-offend and better able to re-integrate into the community.  This has been described as the "overarching test" informing the Minister's decision (See Bradley v. Minister for Justice & Equality [2017] IEHC 422).  Depending upon the Minister's conclusion on this latter consideration, enhanced remission "may" be granted (McKevitt v. Minister for Justice & Ors. [2015] IECA 122, [2015] 1 IR 216) and neither the Applicant nor the Minister has sought to argue otherwise.  It is not disputed that the discretion is a wide one and the onus rests on the Applicant to demonstrate that a decision was arbitrary, capricious or unjust if inviting a court to find a refusal irrational in judicial review proceedings.

 

43.  It is established and there was no demur on behalf of the Applicant from the proposition, that mere participation in an authorised structured activity does not mean that a prisoner is less likely to re-offend or to be able to re-integrate into the community and not all structured activities are of equal value.  It is lawful for the Minister to weigh different forms of authorised structured activity differently depending on the individual circumstances of the offender and the activity with which they had engaged in (see McKevitt).

 

44.  While issue is taken with the adequacy of the reasoning in the decision letter on the facts and circumstances of this case, it is not in dispute that the statutory entitlement to a written notice including the reasons for the refusal supplements the general entitlement to reasons that an applicant for enhanced remission reflects a duty to provide reasons as a matter of natural and constitutional justice.  It is agreed that the nature of the decision as an exercise of executive function affects the level or extent of the statement of reasons that a disappointed applicant may expect to receive as a matter of natural and constitutional justice.  It is not disputed that an applicant for enhanced remission cannot expect to receive an extensive narrative or discursive commentary of the merits and demerits of his application.

 

45.  The guiding principles were helpfully and succinctly summarised in McGinley v. Minister [2017] IEHC 698, where Coffey J. stated the position as follows (at para. 25):

 

"A prisoner who applies for "enhanced remission" has a right to a Ministerial decision that is not "capricious, arbitrary or unjust". The protection of that right requires the court to ensure that when he has refused such an application, the Minister has nominated a reason or reasons for so doing that are of such a nature as to afford a logical and rational basis for refusing enhanced remission having regard to the matters set out in r. 59(2)(/) of the Rules.  Provided the Minister has nominated such a reason or reasons for his decision, a wide margin of appreciation must be allowed to the Minister to determine what weight ought to be given to the relevant factors that are in play. The scope for review by the courts is thus "very narrow" and the fact that a court might come to a different conclusion based on the same information that was available to the Minister is not a reason for finding that the Minister has acted contrary to law (see Bradley v. Minister for Justice and Equality [2017] IEHC 422 at para. 8). The fact that the scope for judicial review is limited, however, does not mean that such review is non-existent.  A refusal of enhanced remission by the Minister would be unlawful if, for example, it was made dishonestly or for no stated reason or where the reason or reasons nominated are manifestly unsupported by the known facts and circumstances of the case or otherwise demonstrably contradictory or irrelevant."

 

46.  While the jurisprudence in this area does not support an expansive duty to give detailed reasons, a review of recent case-law demonstrates variations as between different cases in the practice of giving reasons.  Although not itself a reasons case, McKevitt is a prime example of this variation when compared with the facts of this case.  It is relevant to note that the legal challenge in McKevitt was commenced as an Article 40.4 inquiry which was continued by way of judicial review proceedings when release from detention was refused in the Article 40.4 application.

 

47.  From the judgments in McKevitt, it appears that the decision to refuse enhanced remission was challenged essentially on the basis that the Minister was misdirected in law on the basis of a contention, subsequently rejected by both the High Court and the Court of Appeal, that once the applicant participated successfully in authorised structured activities of the kind contemplated by Rule 59(2) of the Prison Rules, the Minister was bound to conclude that the applicant was entitled to the enhanced remission contemplated in Rule 59(2).

 

48.  In his decision in the High Court, Kelly J. recorded at some length the factors relied upon in the decision to refuse enhanced remission in that case in a manner which makes it clear that extensive reasoning had been given on behalf of the Minister in explaining the refusal.  Reference was made to factors including the fact that in sentencing the applicant, the Special Criminal Court observed that it was satisfied that Mr. McKevitt had directed and played a leading role in a paramilitary organisation which had planned and premeditated serious harm to property and individuals, the continued role of Mr. McKevitt in organising on behalf of republican prisoners and the contents of information obtained from the Garda material.  There is no Garda report in this case.

 

49.  Reference is also made in the judgments in McKevitt to the fact that a memorandum containing a recommendation for the Minister was exhibited in the proceedings with privilege claimed over such portion of the recommendation as referred to the Garda view.  The reasons for refusal were further addressed at some length on affidavit as referenced in the High Court judgment and summarised in the Court of Appeal.  The submission in support of recommending refusal of enhanced remission was quoted in the High Court as follows:

 

 

"It is our assessment that Michael McKevitt will re-engage in dissident Republican activity at a senior level upon his release. We base this assessment on a number of factors: his position within the IRA at the time of his conviction and also that he was the first (and only) person convicted of directing an unlawful organisation the illegal organisation which he represented at the time of his conviction continues to pose a significant threat to this State and the jurisdiction of Northern Ireland it is our assessment that the release of Michael McKevitt would undoubtedly provide a major boost to his illegal organisation."

 

50.  The Court of Appeal (Irvine J.) went on to refer to seven different factors distilled by the High Court as having been relied upon to refuse enhanced remission.

 

51.  From the foregoing, it seems that a different approach to the giving of reasons was evidenced in McKevitt.  Reasons given in the decision letter were supplemented by a memorandum containing a reasoned recommendation for the Minister.  This memorandum, albeit in redacted form, was available as an exhibit in the subsequent judicial review proceedings.  Not only is there no garda report in this case but nor is there a similar memorandum to that which had been prepared in McKevitt and the decision letter does not disclose reliance on any third-party material.

 

52.  Subsequently, in O'Brien v. Minister for Justice [2017] IEHC 199, the question of an entitlement to a reasoned decision in the context of an application for enhanced remission under Rule 59(2) of the Prison Rules came back before the High Court (Barrett J.).  In O'Brien, the Court found a decision couched in almost identical terms to the decision in this case, to be adequately rationalised observing (at para. 9) that dicta from the Supreme Court in Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 IR 297; Kelly v. Garda Commissioner [2013] IESC 47 and McEnery v. Garda Commissioner [2016] IESC 66 require the Minister to provide "a suitably rationalised response by reference to the facts of the application before him or her and this was done".

 

53.  Given the similarities between the decision letter in O'Brien and in this case, I have been invited on behalf of the Minister to conclude that the decision in O'Brien is dispositive of the question regarding the adequacy of reasons in this case.  While it is certainly true that on the facts and circumstances of the O'Brien case, the Court was satisfied that the refusal letter, although terse, was adequately reasoned, I cannot accept that the standard of reasoning considered acceptable in O'Brien was intended as the standard to be applied for all refusals of enhanced remission regardless of the facts and circumstances presenting to the decision maker.  Such a broad assertion of principle does not flow from the decision in O'Brien which turned on the facts before the court in that case.  Furthermore, the law in relation to the duty to give reasons in the context of applications for enhanced remission and generally has continued to evolve since that case was decided.

54.  By way of example, it is clear from the subsequent decision in Bradley v. Minister for Justice [2017] IEHC 422 (Ní Raifeartaigh J.), that the factors set out at Rule 59(2)(f) are not reasons in themselves as to why the overarching test that participation in authorised structured activity is not considered to have reduced risk of re-offending or increased prospect of re-integration into the community for the purpose of guiding a decision on enhanced remission but are merely factors to be considered by the Minister in applying that overarching test as to risk of re-offending and ability to re-integrate into the community.  As pointed out by Ní Raifeartaigh J. in Bradley, in its earlier decision in McKevitt the Court of Appeal had emphasised that the Minister's discretion in deciding whether to grant enhanced remission should be informed by the extent to which the offender sought to address the root causes of his criminal conduct.  

 

55.  While in Bradley the Court was not satisfied to stand over the decision to refuse enhanced remission absent additional information, the case was not decided on classic reasons grounds.  Indeed, although expressing disquiet regarding the level of reasoning apparent in the refusal decision, the Court refrained from quashing the decision on this basis alone.  It should be recalled that in Bradley, it appeared from the decision letter that Mr. Bradley's engagement with authorised structured activity was apparently criticised by the description of same as "limited".  Disquiet was expressed by Ní Raifeartaigh J. at the absence of an explicit explanation for this view of Mr. Bradley's engagement with the services as "limited" in the face of evidence that he had engaged with some services.

 

56.  Despite her reservations, Ní Raifeartaigh J. was not prepared to take the view that the decision was arbitrary, capricious or unjust in circumstances where none of the courses attended by Mr. Bradley could be said to directly challenge the causes of offending behaviour.  She observed that the question of engagement with courses designed to tackle offending behaviour was a matter particularly within the expertise and experience of the prison authorities and an area of Executive discretion with which the Court should be particularly slow to intervene.

 

57.  The facts of this case differ.  Firstly, it has not been suggested that the Applicant's engagement with courses was in any way "limited".  Secondly, the work done by the Applicant through participation in education and behaviour programmes and psychological interventions is of a nature which, at least ostensibly, could challenge the causes of his offending behaviour.  Whether it did, in fact, is a separate consideration but a view that it did not may warrant some explanation depending on the circumstances of a given case, particularly when no issue is taken with the extent of engagement.  No information has been adduced in evidence or relied upon in this case as to the actual impact of engaging with courses on the Applicant's risk of re-offending or re-integration into the community other than the material which the Applicant himself presented.

 

58.  Furthermore, from the judgment in Bradley, it appears that unlike the proceedings before me in this case,  the Court had the benefit of an assessment document or memorandum which was an exhibit in the proceedings and from which, read together with the decision letter, served to identify the reasons for the decision (in particular, reliance on a Garda report).  The existence of a Garda Report is an additional and important differentiating feature between this case and Bradley.  In Bradley, reliance was placed on a Garda report to justify or explain the decision, albeit this report was not put in evidence and reference to it in the assessment document had been redacted.

 

59.  In Bradley, the Court was not satisfied that material could be withheld from Mr. Bradley absent a substantiated claim to privilege.  This was because the Court was mindful that the grant of enhanced remission is the exercise of a discretionary power which is subject to review by the court, albeit on a narrow basis, on the application of an "arbitrary, capricious or unjust" test.  The Court concluded that as Mr. Bradley had the right to a decision on enhanced remission which is not arbitrary, capricious or unjust, this limited review power fell to be exercised having regard to the materials upon which the decision was based or, where privilege was claimed, following an adjudication of the privilege claim.  Accordingly, the Court adjourned proceedings to enable an application for privilege to be advanced in respect of any Garda report or part thereof relied upon by the decision-maker in reaching the decision and to allow for any further information that was before the decision-maker concerning the applicant's criminal history prior to conviction on the subject offences to be set out.

 

60.  In the light of the foregoing, it does not seem to me that either O'Brien or Bradley can properly be read as authority for the more far reaching proposition that reasoning very similar to that used in the refusal decision in this case is always adequate.  It appears that where the reasoning of the decision-maker referred in Bradley, without elaboration, to a Garda report, then an issue arose for the Court in relation to a requirement to disclose this material as an incident of fair procedures.  To the extent that the reason or justification for the decision was in the content of the report, then access to the non-privileged contents of the report was necessary to allow for a determination of whether the decision to refuse was "arbitrary, capricious or unjust".

 

61.  Although, the refusal letter in this case makes no reference to a third-party report, this does not fully distinguish this case from Bradley.  Traced to their origins the rationale for a right to reasons and the right to access to the materials before the decision maker is similar.  In both instances, additional information is required to subject the decision to review having regard to the adequacy in law of the basis for the decision.  The requirement for further information in relation to the material before the decision-maker arose in Bradley to equip a court to assess whether the decision was "arbitrary, capricious or unjust" having regard to the material or evidence available to the decision maker.  The requirement for reasons is similarly rooted in a need to equip a court to subject a decision to review having regard to the material or evidence before the decision-maker. Where, as here, the materials do not extend beyond the material submitted by the Applicant, it is nonetheless necessary to understand the reasoning underpinning the decision if it is to be subject to review on the basis that it is "arbitrary, capricious or unjust".

 

62.  In addition to the development in jurisprudence apparent in Bradley, in its seminal decision in Connelly v. An Bord Pleanála [2018] IESC 31, the Supreme Court (Clarke CJ.) reviewed the case-law on the duty to give reasons, including Mallak, before stating that it will rarely be sufficient to set out, in almost standard form, a generic description of the legal test or principles by reference to which the decision is to be made, to state that that test has been applied, and simply to go on to say that a particular decision has been made.  Clarke CJ. added that there is a middle ground between the sort of broad discursive consideration which might be found in the judgment of a court, on the one hand, and an entirely perfunctory statement that, having regard to a series of factors considered, the decision goes one way or the other stating that:

 

 

"there is at least an obligation on the part of decision makers to move into that middle ground, although precisely how far will depend on the nature of the questions which the decision maker had to answer before coming to a conclusion."

 

63.  In none of the cases cited on behalf of the Minister was regard had to the important decision in Connelly which is authoritative and binding on me.  I am satisfied that the requirement to give reasons for a decision varies from case to case depending on the material put before the decision-maker in contending for the exercise of a discretionary power with due regard to prescribed factors.  A refusal of enhanced remission is not a decision which requires to be reasoned in detailed or discursive fashion, but it must still be clear why the decision was made having regard to the overarching statutory test informed by prescribed considerations.  While in many cases involving refusals of an application for enhanced remission, the reasons for the decision will be manifestly clear based on the facts and the material before the decision-maker, it will not be universally so.

 

64.  It seems to me, in the light of subsequent case-law, most particularly the decision of the Supreme Court in Connelly and Ní Raifeartaigh J. in Bradley, that a simple recitation of the statutory considerations relied upon to refuse an application in O'Brien will not suffice to explain why the decision to refuse was made in the light of those identified considerations relied upon to refuse enhanced remission in every case.  Such a terse statement of reasons will not necessarily be an adequate statement of reasons in cases, for example, where there has been extensive engagement by an application in authorised structured activity which is manifestly relevant to an application of the overarching test with due regard to the prescribed relevant considerations.

 

65.  There may be cases where the material put before the decision-maker will be such that, in contrast with the material in O'Brien, it becomes necessary to go beyond merely identifying the relevant statutory consideration relied upon to justify refusal to explain why a demonstrated impact on re-offending and re-integration necessary to ground remission has not been shown considering all relevant prescribed factors.

66.  Without deciding the issue in this case, it seems to me that the requirement for a fuller statement of reasons might arise, for example, where there is evidence of an unusually high level of engagement with authorised structured activity and where the authorised structured activity is of a nature which objectively bears on the likelihood of re-offending and the ability to re-integrate into the community.

 

67.  Although I am satisfied that there may well be cases in which the decision-maker ought properly to go further and state why he is not satisfied that the likelihood of re-offending was not reduced and the ability to re-integrate into the community not enhanced to a degree warranting some enhanced remission on sentence, in view of the requirements of judicial restraint, I do not propose to make a finding on the adequacy of reasons in this case without first considering the mootness issue which has been raised on behalf of the Minister.  This is because it seems to me that even if I were to find that there was an inadequacy of reasoning on the facts and circumstances of this case, a further question arises as to whether it would be appropriate to exercise a discretion to grant relief in respect of that refusal where the Applicant is no longer in custody as his sentence is spent. 

 

68.  Furthermore, it seems to me that the very rationality of the decision, also challenged in these proceedings, is secondary to a decision on the adequacy of the reasons given.  Any decision on a challenge to the rationality of the decision falls to be assessed with reference to the reasons for the decision and should first await a decision on that issue as the ability to decide on rationality is fundamentally bound up with the question of adequacy of reasons.

 

      Mootness

69.  Insofar as the duty to provide reasons is directed towards permitting an effective review of the lawfulness of the Minister's decision to refuse enhanced remission, the question arises as to what real purpose would be served by requiring reasons to be provided in ease of a rationality review which could only be meaningful if there were a prospect of a different decision following remittal resulting in release from custody.

 

70.  I note that the Applicant does not seek an entitlement to re-apply for enhanced remission and accepts in written submissions that to do so would be "nonsensical".  Contrary to the submission made on behalf of the Applicant that his right to reasons stands unaffected by the fact that he is at liberty, it seems to me that where the right to reasons is in ease of a right to ensure lawful decision making, then that right is affected where there is no further utility to a finding of unlawfulness in ease of a fresh lawful decision being made.  Where the Applicant has been at liberty since June, 2024 and cannot now obtain enhanced remission no matter what the outcome of these proceedings, I need to be persuaded that there is a purpose to be served by granting relief in these proceedings whether by quashing the decision, requiring the Minister to reconsider a remitted application or making a declaratory order or otherwise for it to be appropriate to grant proceed to determine the point on the basis that it is not moot.

 

71.  In O'Brien v. Minister for Justice and Equality, the Court proceeded to hear a challenge to the decision to refuse enhanced remission on the 9th of February, 2017, even though the anticipated release date without enhanced remission was the 13th of February, 2017, a short number of days later.  Although the hearing concluded before the anticipated release date without enhanced remission, judgment was only delivered on the 31st of March, 2017, after that date had passed.  Barrett J. observed in his decision that:

 

 

"Notwithstanding the imminence of the release date and the logistical constraints this brought to bear as regards any decision the court might make in the judicial review application, it was considered sensible to proceed to hearing because, inter alia, certain claims as to a systemic deficiency in the permission process might otherwise go un-aired and unaddressed."

 

72.  Whatever about the nature of the systemic deficiency sought to be addressed in O'Brien, from my review of the case-law above, it seems to me that the issue now arising is not a systemic one.  Rather it is well established that the necessity for reasons and the extent of the reasoning required in decisions under Rule 59(2) is not extensive but it varies from case to case depending on the particular facts and circumstances of each case.  Furthermore, it is important to reflect that there is a difference between this case and O'Brien, in that when the case proceeded to hearing in O'Brien, the period of enhanced remission had not already passed.  In contrast, on the date of hearing of this case in May, 2025, we were approaching the first anniversary of the Applicant's release from prison.

 

73.  To test the Minister's reliance on the doctrine of mootness, I queried with counsel for the Minister whether the grant of declaratory relief might not be appropriate in vindication of the Applicant's right to an effective remedy in respect of any established breach of his right to constitutional justice.  Having further deliberated on this proposition, however, it seems to me that I cannot conclude that the Applicant was not without an effective remedy in this case in a manner which might warrant me granting declaratory or other relief at this remove.  This is because the remedy of proceeding by way of judicial review was open to the Applicant but he delayed in initiating proceedings.  When making application for leave to proceed ex parte several months after the decision was made, no application for priority or for an early date was made as it could and should have been if it was sought to secure a lawful decision on an application for enhanced remission within a meaningful timeframe.

 

74.  While I am mindful that the Court cannot always accommodate applications for an early date or afford priority due to systemic pressure and resource issues, every effort is made to expedite custody cases in accordance with obligations on the Court under the Constitution.  Indeed, as apparent from the decision in McKevitt, which commenced as an Article 40.4 enquiry followed by an application by way of judicial review, proceedings were heard in full in the High Court within a three-month period (commenced on the 1st of September, 2014 and determined in the High Court on the 9th of December, 2014).

 

75.  It is also manifest from the decided cases (some of which have been cited above) that refusals of enhanced remission have quite frequently been subject to court adjudication.  Numerous other cases involving challenges to refusals of enhanced remissions identified in the written submissions include: Ryan v. Governor of Midlands Prison [2014] IEHC 388, Farrell v. Governor of Portlaoise Prison [2014] IEHC 395, Doody v. Governor of Wheatfield Prison [2015] IEHC 137, Callely v. Minister for Justice [2015] IEHC 485 (a case in which bail was granted pending determination of the judicial review proceedings), McCormack v. Minister for Justice [2015] IEHC 578, McLaughlin v. Governor of Wheatfield Prison [2017] IEHC 414, McGinley v. Minister for Justice [2017] IEHC 549, Kelly v. Minister for Justice [2017] IEHC 805 and Kendall v. Minister for Justice [2019] IECA 21.  Considering this significant body of case-law evidencing the ability of applicants to bring challenges to the lawfulness of a refusal of enhanced remission, the submission on behalf of the Applicant that refusing to determine this application would undermine the rule of law and could lead to a suggestion that the Minister is beyond the reach of this Court when he is considering applications for enhanced remission, is without real merit.  The contrary is clear from the case-law.

 

76.  Although the Applicant's counsel maintains that there was no reality to these proceedings being heard and determined before the Applicant was released in June, 2024, this is not a proposition I can accept without proper attempts having first been made unsuccessfully to secure an expedited hearing.  I am not satisfied that the timescale available for the bringing of an application was "near impossible" as was found to be the position in Healy v. Minister for Communications [2009] IEHC 258, [2009] 4 IR 186.  Had an application for priority been made but, despite appropriate efforts, it had transpired that it was not possible to ensure a hearing capable of providing an effective remedy in advance of the Applicant's release date, then very different considerations would arise for me in these proceedings.  These are not the facts which present on this application.

 

77.  I am satisfied that the grant of relief in these proceedings at this point in time would be of no real or practicable benefit to the Applicant.  The Applicant has not established that the decision to refuse enhanced remission has any ongoing meaning or effect as regards his future treatment by the authorities.  Although he is a convicted sex offender and therefore obliged to maintain contact with the Department of Justice and other agencies, his interaction with any such agencies consequent upon his conviction has not been shown to be impacted by the fact that he was not granted enhanced remission.  His affidavit evidence in this regard is entirely speculative and based on unsubstantiated conjecture.

 

78.  This case is distinguishable from those cited on behalf of the Applicant where ongoing issues impacting in a real way were identified such as State v. Polin [1976] I.R. 93 where a continuing interest in quashing negative findings in reports held on file was found to exist or State (Furey) v. Minister for Justice [1984] WJSC-SC 408, [1988] I.L.R.M. 89 where the Court was persuaded that an order of certiorari would not lack effect or be without advantage in view of the impact of discharge on his employment and re-enlistment prospects.  Contrary to what is urged on his behalf, it has not been established on the evidence that the impugned decision has any lasting significance or potential to mark or mar the Applicant's life.

 

79.  I have concluded that the Minister's objection that these proceedings have been rendered moot within principles identified in O'Brien v. Moriarty [2016] IESC 36 by the Applicant's release from custody upon the expiry of his sentence with standard remission is well founded.  There is no longer any legal dispute between the parties and a decision on the substantive issues raised in these proceedings will not have the effect of resolving some controversy affecting or potentially affecting their rights.  This case does not involve "a wrong continuing, character at issue, and a defective order operating as a blot on character" (per Kingsmill Moore J. in State (Vozza) v. O'Floinn [1957] I.R. 227, 250).

 

80.  It is established as a general rule that, where proceedings are moot, the Court should not determine the issues.  As set out in Lofkinmakin v. Minister for Justice [2013] IESC 49, there are exceptions to this general rule, including where one or both parties has a material interest in a decision on a point of law of exceptional public importance or where the case is a test case with many other cases adjourned pending the decision on the case before the Court.  No such exceptional circumstances have been established in this case.  I must therefore refuse to determine the legal grounds of challenge urged on behalf of the Applicant.

 

CONCLUSION

81.  There is no longer a real purpose to granting relief in respect of a failure to adequately reason (or for that matter a quashing order on rationality grounds) in these proceedings because there is no prospect of securing a different decision at this stage.  Nor has it been established that a decision in this case has systemic significance which might otherwise escape adjudication in breach of rights of access to the courts.  Accordingly, I have decided that the proper course is to refuse to determine the substantive issue in these proceedings and dismiss this application.  

 

82.  For the reasons given above, I refuse the relief sought and dismiss the within proceedings.  I will hear the parties in relation to such consequential matters as remain outstanding, if necessary.  To this end, these proceedings will be listed for mention on a date not less than fourteen days from the delivery of this judgment electronically, unless I am informed that the parties are agreed as to the form of final order and a listing is not therefore required.  The further listing of this matter before me, if required, will be communicated by the assigned Court Registrar.

 

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