Bradley v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms Justice Ní Raifeartaigh
• Judgment Date: 26 May 2017
• Neutral Citation: [2017] IEHC 422
• Docket Number: RECORD NO: 2016/713 JR
• Court: High Court
• Date: 26 May 2017

Alan Bradley

Plaintiff

AND

The Minister for Justice and Equality

Defendant

[2017] IEHC 422

RECORD NO: 2016/713 JR

THE HIGH COURT

Crime & Sentencing – R. 59 of the Prison Rules – Enhanced remission – Certiorari – Conspiracy to commit theft – Nature and gravity of offence – Standard of review of administrative discretion

Facts: The applicant sought an order of certiorari for quashing the respondent's decision for refusing the applicant's application for enhanced remission. The applicant contended that he had fulfilled the requisite conditions for being eligible for enhanced remission and had been granted the status of “enhanced prisoner.” The applicant contended that the decision maker was obliged to disclose the redacted privileged information to the applicant, which formed the basis for the refusal of his application for enhanced remission.

Ms. Justice Ni Raifeartaigh adjourned the matter so that the respondent could file additional affidavits in the present case. The Court found that the standard of review applied by the Courts in cases pertaining to remission was to see whether the decision of the respondent was arbitrary or capricious. The Court held that the applicant could not claim enhanced remission as a matter of right as it was a discretion of the respondent. The Court found that the respondent had failed to disclose the materials upon which the impugned decision was taken. The Court granted liberty to the applicant to make a formal claim of privilege in relation to any Garda report and disclose the information that was before the decision-maker concerning the applicant's history prior to his conviction in the present case. The Court noted that in any application for enhanced remission, the respondent was needed to consider the prisoner's likelihood of re-offending and chances of re-integration into the society. The Court held that before arriving at any decision, the respondent must consider potential threat to public, nature and gravity of offence, and the manner and extent to which the prisoner had taken steps to address his offending behaviour. The Court held that there was not enough evidence before the Court to ascertain the basis on which the impugned decision was taken.

JUDGMENT of Ms Justice Ní Raifeartaigh delivered on the 26th May, 2017

1 This is a case in which the applicant seeks reliefs, including certiorari, by way of judicial review in respect of a decision refusing him enhanced remission in relation to a sentence of imprisonment. The case has in my view raised important questions as to the appropriate procedures concerning a claim of confidentiality in respect of a Garda report furnished to the decision-maker, and the proper role of the Court in a judicial review of Executive action in the area of remission. For reasons which will become apparent, this is not a final judgment in the case.

The circumstances of the present case

The applicant's sentence

2 The applicant was sentenced by the Dublin Circuit Criminal Court on the 16th April, 2012, to a sentence of 9 years imprisonment with the final two years suspended. The offence in respect of which he was sentenced was conspiracy to commit theft. The sentence was reduced on appeal on the 16th July, 2014, to a sentence of 8 years with 18 months suspended. It was a condition of the suspension that he enter a bond to keep the peace and be of good behaviour for a period of one and a half years from the date of his release from custody.

3 The applicant made a number of applications for enhanced remission which were refused by the Minister. The most recent of these refusals is the subject of these proceedings. A prior application which was refused was the subject of an earlier set of judicial review proceedings which were compromised in July, 2016, inter alia on the basis that the Minister would consider a further application for enhanced remission. The applicant then made an application for enhanced remission dated the 28th July, 2016. In support of his application, he submitted, inter alia, that he had engaged in authorised structured activities in a number of areas. At the time of his application, the applicant was serving his sentence in Portlaoise prison and had the status of “enhanced prisoner.”

The letter of refusal

4 The application for enhanced remission was refused by letter dated the 10th August, 2016. The letter was signed by Paul Mannering of the Operations Directorate in the Irish Prison Service. The letter set out the nine factors which the respondent was required to take into account under Rule 59 of the Prison Rules, 2007, as amended. The letter went on to say as follows:

‘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. Whilst it is acknowledged that you have engaged with the education services whilst in custody, the Minister having had regard to the nature and gravity of your offence, potential threat to the safety and security of members of the public, limited engagement with services to address your offending behaviour and the views of An Garda Síochána is not satisfied that you are less likely to re-offend and are better able to reintegrate into the community.’

There then followed correspondence between the solicitor on behalf of the applicant and Mr. Mannering, in which the applicant's solicitor complained about the decision and sought further reasons for it. Inter alia, the applicant's solicitor referred to the evidence of the Gardaí at the sentence hearing, inquired as to the basis for the conclusion that the applicant represented a threat to the safety and security of the public, and requested a copy of the Garda report, redacted if necessary. This particular letter received no reply from Mr. Mannering or anyone else on behalf of the respondent. Leave to seek judicial review was granted on the 13th September, 2016, and the applicant was granted bail on the 20th September, 2016. No discovery application was made by the applicant in pursuance of the judicial review proceedings.

Assessment Document of Mr. Mannering

5 A document of relevance to the case was introduced into the proceedings in a somewhat peculiar manner in the course of the exchange of affidavits. In a third replying affidavit sworn on the 8th November, 2016, the applicant exhibited a particular document which had been disclosed to him in the earlier judicial review proceedings which had been compromised. Mr. Mannering then swore an affidavit dated the 9th November, 2016, in which he exhibited what appeared to be the same document, which he described as a document prepared by himself ‘in which the applicant's application for enhanced remission was fully assessed.’ He said that as this document contained certain privileged information, parts of it had been redacted prior to exhibition. He did not indicate which parts had been redacted. The document included the following:

‘Manner prisoner has engaged in ASA

Prisoner has engaged with the Red Cross in Portlaoise prison since January 2013 and has become a facilitator and overdose facilitator for the service. He has also engaged with the Education Service in Portlaoise and has completed a number of courses including Health and Fitness and Event management. He is also studying for his QQI Level 5 in Business Law and Start your own business course.

Manner prisoner has addressed offending behaviour

Prisoner has engaged with the Psychology Service for stress management and claims that he was never made aware of the fact that they deal with offence focussed work.

He also states that he attempted to engage with the Probation Service however due to resource constraints they will only engage with prisoners who have a court order. This was confirmed in a call to Probation in Portlaoise.

Nature and Gravity of offence

Conspiracy contrary to Section 71 of the Criminal Justice Act 2006 and Section 4 of the Criminal Justice (theft and Fraud Offences) Act 2001.

Sentence and recommendations of Court

8 Years (1 Year and 6 months suspended)

Period of sentence served

4 Years 4 Months

Potential threat to safety of public (including victim)

No VLO registered however the nature and gravity of the offence, which the trial judge considered to be at the upper end of the scale means that I believe that there could be a potential threat to the safety and security of the public.

Previous criminal record

Prisoner has a number of previous convictions for offences including No Insurance and Threatening Behaviour

Conduct of prisoner in prison or on TR

Mr Bradley is an enhanced prisoner and has been for some time. He does not come to the adverse attention of prison management and has only 2 P19 disciplinary reports for minor offences for which he received a caution.

DECISION AND REASON (reasons go in letter to prisoner)

Is the prisoner less likely to re-offend and better able to re-integrate into the community?

Mr Bradley had engaged well with the education service and other services in the prison and has a good disciplinary record. However he has not shown enough evidence that he has addressed his offending behaviour. All prisoners committed to Portlaoise Prison are provided with a handbook which outlines the services available to them and it is incumbent on the prisoner to make an effort to address his offending behaviour. While the engagement with education is worthwhile, it does not address the index offence for which the prisoner was sentenced or any risk factors associated with this.

Based on the nature and gravity of the offence, potential threat to the safety and security of members of the public, limited engagement with services to address his offending behaviour and the views of AGS, I am not satisfied that the prisoner is less likely to re-offend and is better...