O'Brien v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 31 March 2017
• Neutral Citation: [2017] IEHC 199
• Docket Number: [2016 No. 921JR]
• Court: High Court
• Date: 31 March 2017

[2017] IEHC 199

THE HIGH COURT

Barrett J.

[2016 No. 921JR]

BETWEEN:

OWEN O'BRIEN

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

AND

THE IRISH PRISON SERVICE

RESPONDENTS

Crime & Sentencing – Conviction for sexual assault – Remission of sentence – R. 59 of the Prison Rules 2007 – Rejection of application for enhanced remission – Nature and gravity of offence

Facts: The applicant sought an order of certiorari for quashing the decision of the first respondent for refusing the applicant's application for enhanced remission of the sentence. The applicant contended that he had attended various programmes to reduce the possibility of reoffending, and thus, he was entitled for enhanced remission. The applicant claimed that the first respondent had adopted a blanket-refusal policy for remission of the sentence to the sex offenders.

Mr. Justice Max Barrett refused to give the desired reliefs to the applicant. The Court held that the decision taken by the first respondent was just, cogent and rational. The Court held that the impugned decision was taken by considering various factors such as the nature of sexual offences committed by the applicant, his possibility of re-offending and reintegrating into the society.

Judgment of Mr Justice Max Barrett delivered on 31st March, 2017.

I. Background

1 The applicant was convicted of a series of sexual assaults on a child. He received a five-year sentence of imprisonment. Sentence was imposed on 17th May, 2013. A prisoner typically receives a one-quarter remission of sentence in return for good behaviour in prison (there is no right to this one-quarter remission but, in practice, such remission is, to borrow a phrase employed at hearing by the applicant's counsel largely “the prisoner's to lose”). With this one-quarter remission, the applicant had an anticipated release date of 13th February, 2017. However, pursuant to rule 59 of the Prison Rules 2007 (S.I. No. 252 of 2007), as amended, the applicant had applied for enhanced remission which would have seen one-third of his sentence remitted and an earlier release date settled upon, if that application were successful. During his time in prison, the applicant had taken various steps to reduce his prospects of re-offending on release, which included his attending a sex offender programme that saw him secure a “low to medium” risk-rating of re-offending, the usual such rating being apparently a “medium to high” risk. Even so, the applicant's application for remission was rejected by the Minister, in a letter of 15th September, 2016, with the critical element of the letter of rejection being as follows:

‘The Minister, having considered your application for enhanced remission, including material 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 in some authorised structured activity, the Minister having had regard to the extent to which you have taken steps to address your offending behaviour, the nature and gravity of your offence to which the sentence of imprisonment relates and the potential threat to the safety and security of members of the public, is not satisfied that you are less likely to re-offend and are better able to re-integrate into the community.’

2 Following on the refusal of enhanced remission, the applicant commenced the within judicial review proceedings in which he sought, inter alia, an order of certiorari quashing the refusal, an order of mandamus directing that adequate reasons be given for the refusal, a declaration that the refusal was based on unlawful policy considerations, damages, an order admitting the applicant to bail, and various ancillary reliefs.

3 The within judicial review application was heard on 9th February, 2017. 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 remission process might otherwise go un-aired and unaddressed. In fact, as will be seen, the court has found none of the claimed deficiencies to present.

II. A “Blanket-Refusal” Policy?

4 The applicant maintains that the Minister fettered her discretion ‘ by applying an unduly restrictive policy, or a blanket-refusal policy’ in respect of sex offenders, as evidenced, he maintains, by the fact that no sex offenders have thus far been successful in obtaining a one-third remission. The Minister maintains (and the court...