1. The
Applicant is serving a four year sentence for receiving stolen cheques. He
was initially committed to Mountjoy prison on the 4th March, 1998. He was
transferred to Portlaoise Prison on the 4th March, 1999 and to the Training
Unit in Glengarriff Parade on the 6th July, 2000. He is due for release on the
8th March, 2001, less than a month hence. He has a number of previous
convictions including one for possession of drugs with intent to supply, for
which he received a six year sentence. According to his own correspondence
exhibited in this case he has spent eleven of the last fifteen years in jail.
2. The
Applicant made a number of applications for temporary release from prison.
One of these, in November, 2000, was successful and he has a further
application pending. However, the present proceedings relate to an earlier
application which he made on the 27th March, 2000 and which was refused by
letter dated the 26th May, 2000.
3. While
the Applicant sought a variety of reliefs in his original proceedings, on the
hearing of this appeal the relief sought was confined to an Order quashing the
refusal evidenced by the letter of 26th May, 2000. This relief was sought on
the basis that the notification of the decision to refuse temporary release did
not contain adequate reasons for such refusal; further or in the alternative
that the reasons actually given suggested that the decision had been come to in
an irrational or unreasonable fashion; that the criteria set out in that
letter for the granting of temporary relief were themselves inadequate and
inconsistent with modern penal policy including policies to which the State,
through the Council of Europe, has adhered; and that the criteria were being
applied in a discriminatory fashion.
4. In
the course of this hearing there was some debate about the nature of temporary
release. It does not appear to me that temporary release is a specific
exercise of the general power of commutation or remission envisaged in the
Constitution. Rather, it appears to be a statutory creation administered under
the Prisoners (Temporary Release) Rules 1960 (SI 167 of 1960), which instrument
was in turn made under the powers conferred by the Criminal Justice Act, 1960.
6. In
fact, Mr. Kinahan directed his application for temporary release in the first
place to an official in the Department of Justice and secondly, to the Minister
personally. In light of this I do not think it is open to the Applicant to
take a point of the sort that was briefly canvassed in argument, to the effect
that the Minister had usurped the Governor’s functions in the matter.
In any event, the decision was communicated to the Governor as well as to the
Applicant and if necessary I would be prepared to hold that the letter of the
26th May constituted a direction within the meaning of Regulation 3.
7. It
is clear from the above-mentioned Statute and Regulations that temporary
release is envisaged as a release from custody for a limited period during the
currency of a sentence, subject to conditions and carrying an obligation to
return to the prison at its conclusion. In this it seems quite distinct from
the general executive power of remission.
8. On
behalf of the Applicant it was submitted that the letter of the 26th May
communicated no, or alternatively no adequate, reason for the refusal of
temporary release. It was submitted that, in particular by reason of certain
recommendations of the Committee of Ministers of the Council of Europe, to
which Ireland was party, there is a presumption in favour of an Applicant for
temporary release being released. The relevant recommendation is a
recommendation R(87)3. These recommendations, it was submitted, were
inadequately reflected in the six criteria, which according to the letter of
the 26th May, 2000, applied to applications for temporary release. It was
contended that any rational application of proper criteria could only lead to
the release of the Applicant. In any event no coherent reason for refusing
the application appears on the face of the letter.
9. For
the Respondent, it was contended that there was a very wide discretion as to
how to deal with applications for temporary release, which was a privilege
granted in an executive manner by the Minister or Governor. There was no need
for a refusal to be justified by specific reasons and in some cases it could be
dangerous or unwise to do so. The Respondents did not, in the end, contend
that a decision to refuse temporary release could never be the subject of
review (though there was some authority cited for this proposition). It was
however submitted that a decision of this sort could only be reviewed in the
circumstances referred to in
O’Keefe
v. An Bord Pleanála
[1993] 1 IR 39 and
The
State (Keegan) v. Stardust Compensation Tribunal
[1986] IR 642. These authorities envisaged the intervention of a court with a
decision only when:
10. This
classic line of authority was applied to decisions in relation to temporary
release by
Murray v. Ireland and The Attorney General
[1991] ILRM 465. There, the Supreme Court was dealing with a submission that
the executive should be directed to grant temporary release to the second-named
Plaintiff and his wife, both of whom were serving life sentences for murder.
However, the ratio appears equally applicable to persons serving a determinate
sentence.
12. Having
dealt with other contentions in relation to the conditions of imprisonment, the
learned Chief Justice continued:-
13. In
my view, this decision properly emphasises the importance of the constitutional
separation of powers in dealing with the implementation by the executive of a
judicially imposed sentence of imprisonment. It also correctly identifies the
sole circumstances in which the Court would be justified in interfering with a
decision in relation to temporary release.
14. I
cannot accept the characterisation of the decision evidenced by the letter of
the 26th May, 2000 which was advanced on behalf of the Applicant. In my view,
the letter properly set out the six criteria used to assess applications for
temporary release. These are:-
15. The
letter stated that compassionate grounds were in practice limited to grave ill
health or death of an immediate family member and gave as the substantive
reason for the refusal of temporary relief that it was too early in the
sentence to grant it.
16. In
my view this letter stated a rational policy based on criteria which the
Minister was entitled to lay down and evidences a decision rationally based on
these criteria. The letter also advised the Applicant that the Minister had
approved his transfer to the Training Unit and suggested that he should work
with therapeutic services including the probation service there
“to
combat your reoffending behaviour”.
These services, it was said, might then supply reports to the Minister which
might be beneficial when the Applicant’s case next came for review.
17. I
do not consider that the criteria indicated by the Minister are in any way
deficient. The principal attack on them was based on the proposition that they
were incompatible with the Council of Europe recommendation referred to above.
A study of the recommendations does not support the proposition advanced.
They are expressed in general terms in the main and urge that prisoners should
be prepared for reintegration into the community by means of work with
probation officers and social workers and the like. The most specific
recommendation relied upon, at paragraph 88 of the document is as follows:-
18. Apart
from the fact that these recommendations are clearly not binding, it appears to
me that they have in fact been complied with in relation to the Applicant.
There is uncontradicted evidence to the effect that the Training Unit attached
to Mountjoy prison provides a day release programme for prisoners who wish to
attend workshops run by a voluntary organisation. The Applicant has not
applied for this programme. Equally, the Applicant has had
“little
or no contact”
with the Probation and Welfare Service, on the basis that he has indicated that
“he
did not need to work with them on his offending behaviour”.
He has however been enabled to pursue some six educational courses and his
pre-release needs have been specifically considered by a conference involving
the Governor, Probation Officers and other staff. I am far from holding that
the decision on this application would be different if these things had not
occurred but in light of the submissions made it is proper to record my view
that, on the evidence, the Applicant’s post release welfare has been
seriously considered.
19. There
is nothing whatever in the recommendations referred to which, either in its own
terms or as a matter of law, creates a presumption that the Applicant or any
prisoner is entitled to temporary release.
20. The
Applicant refers to his belief that a group of other prisoners are afforded
temporary release on a structured programme. In the case of such a prisoner
serving a four year sentence, he says, this would come into effect one year
before expiration of sentence. In fact, an examination of the single
document produced in support of this proposition shows that
“short
term and weekend pre-releases”
will come into effect six months before the expiration of the sentence, in the
cases to which it applies. The Applicant had not reached this stage in May
2000. Apart from this single document, which has plainly been removed from
its context, there is no specific evidence of the existence of an arrangement
such as the Applicant describes. In any event, the essence of the temporary
release provision is that it is based on a consideration of the individual
circumstances of a prisoner. I do not believe that any discriminatory
application of the relevant criteria has been established.
21. The
learned High Court judge dealt with this case by way of an ex-tempore judgment
delivered shortly after the conclusion of argument. It seems likely that he
dealt with it in this way in the interest of expedition, having regard to the
fact that the date for the Applicant’s release was rapidly approaching.
The judgment has to be read in the light of the arguments which had just
concluded. There is a clear finding that the letter of the 26th May set out
the criteria which the Minister had applied and the reason for his decision.
There was a further finding that the reason had been stated with sufficient
precision to put the Applicant in a position to apply for judicial review. The
judgment also distinguished between the letter of the 26th May and an earlier
letter which, in the learned judge’s view, did not contain sufficient in
the way of reasons.
22. In
the circumstances of the case I believe that an ex-tempore judgment was much in
the Applicant’s interest: had judgment been reserved the Applicant
might not have been able to get his appeal on in this Court prior to the date
of his release. An ex-tempore judgment will naturally be less elaborate than
a judgment supported by written reasons, but the judgment of the High Court in
this case clearly indicated the learned trial judge’s findings which were
sufficient to justify the order which he made.