Callely v Minister for Justice & Equality and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 21 July 2015
• Neutral Citation: [2015] IEHC 485
• Court: High Court
• Docket Number: [2014 No. 654 JR]
• Date: 21 July 2015

Between:-

IVOR CALLELY

Applicant

- AND -

MINISTER FOR JUSTICE AND EQUALITY

- AND -

THE GOVERNOR OF WHEATFIELD PRISON

Respondents

[2015] IEHC 485

[2014 No. 654 JR]

THE HIGH COURT

JUDICIAL REVIEW

Crime & Sentencing – S. 2 of the Criminal Justice Act 1960 – S. 26 of the Criminal Justice (Theft and Fraud Offences) Act 2001 – Rule 59 (2) of the Prison Rules 2007 – Temporary release from prison – Enhanced remission – Carltona doctrine – Fair procedures

Facts: Following the conviction of the applicant for fraudulently submitting false invoices for mobile telephone expenses and lodgement in prison, the applicant now sought orders of certiorari for quashing the decision of the first named respondent refusing the applicant's temporary release and enhanced remission. The applicant also sought orders of mandamus for reconsidering the applicant's claim for temporary release and one-third remission. The applicant also sought a declaration that the first named respondent did not have the authority to delegate its power to remit sentences of imprisonment to the Operations Directorate of Irish Prison Service.

Mr. Justice Barr refused to grant an order of certiorari to the applicant for quashing the decision of the first named respondent refusing the temporary release of the applicant. The Court held that under s. 2 of the Criminal Justice Act 2001, the first named respondent had been conferred with wide discretion guided by factors set out under s. 2 (2) of the said Act, and it did not create any right on the part of the prisoner to ask for his temporary release. The Court held that intervention of the Court would be justified had the decision been reached by violation of constitutional provisions of fairness and in the subject case, the first named respondent acted reasonably by refusing the release as it pointed out that the nature of the offence committed by the applicant being a member of the public was of the gravity that did not warrant his release. The Court granted an order of certiorari to the applicant against the first named respondent's refusal of enhanced remission. The Court held that it was mandatory for the first named respondent to consider that all the conditions set out under r. 59 (2) (f) (ii) of the Prison Rules 2007 had been met and then she did not have discretion to refuse the application for enhanced remission. The Court found that in the subject case, the first named respondent only considered the engagement of authorized structured activities and the nature and gravity of the offence and failed to assess the other evidence in relation to the applicant's impeccable conduct and the improbability of repeating the offence. The Court refused to grant the declaration to the effect that the first named respondent lacked the authority to delegate her power regarding temporary release and enhanced remission of the prisoners. The Court propounded that the first named respondent being the political head of the department and answerable to the Oireachtas was faced with diversified tasks and thus, it was not possible for her to pay individual attention to each and every matter before her. The Court held that the Carltona doctrine applied to the decisions of temporary release and enhanced remission and her delegation of power was lawful and within constitution.

JUDGMENT of Mr. Justice Barr delivered on the 21st day of July, 2015

1 The applicant in this case is seeking, inter alia, an order of certiorari by way of judicial review quashing the decision of the first named respondent, dated 28th October, 2014, refusing his application for temporary release under s. 2 of the Criminal Justice Act 1960 (‘the Act of 1960’); and an order of certiorari quashing the decision of the first named respondent, dated 7th November, 2014, refusing his application for enhanced remission under Rule 59(2) of the Prison Rules 2007, as amended (‘the Prison Rules’).

Background

2 The applicant is a former Teachta Dála, Senator and Minister. He pleaded guilty in the Dublin Circuit Criminal Court to four counts of fraudulently submitting false invoices in support of a mobile telephone expenses claim of €4,207.45, contrary to s. 26 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

3 At his sentence hearing, the court was informed that the applicant had not previously come to the adverse attention of An Garda Síochána, that he was a first-time offender convicted of a non-violent offence in respect of which he had pleaded guilty, and that he had apologised and repaid the money defrauded.

4 The applicant was sentenced to five months' imprisonment on 28th July, 2014. In imposing this sentence, Judge Ring pointed to what she regarded as a ‘ significant breach of trust’ on the applicant's part and indicated that his role as a public representative was a major factor in the case. Because of this, Judge Ring considered that a custodial sentence was appropriate ‘ in the public interest’. She further stated that it was the fact of the sentence ‘ rather than the length’ that was important.

5 The applicant was committed to Mountjoy Prison on 28th July, 2014 and on 1st August, 2014 he was transferred to Wheatfield Prison. In both prisons, the applicant was advised that an assessment would be carried out within seventy-two hours, focused on finding suitable programmes for him. However, no such assessment was carried out. The applicant stated that he was advised that he was suitable for community release, the community support scheme, and temporary release; he further stated that he was advised that he would ‘ not do full term.’

6 The applicant stated that although he was a first-time offender who was convicted of a non-violent crime, and notwithstanding his suitability for the community support scheme and temporary release schemes as communicated to him by the authorities, he was nonetheless placed on a system of twenty-three hour lock-up as provided for by Rule 63 of the Prison Rules. The applicant found this to be very difficult and mentally challenging. The applicant suggested that the fact that this happened contrary to the Governor's wishes, and when there were eminently more suitable alternatives available, such as temporary release, was the first indication that he was being treated differently to other prisoners who had been granted temporary release. The applicant pointed out that Mr Tony Hickey, who is an Assistant Principal Officer in the Operations Directorate of the Irish Prison Service, does not explain in his affidavit as to why twenty-three hour lock-up rather than temporary release was preferred.

7 At the time of Mr Callely's arrival in Wheatfield Prison, the educational and training facilities were closed for the summer recess. Therefore, in order to ensure he could involve himself in activities and become an ‘ enhanced’ prisoner, the Governor arranged for ‘ structured activity’ to be made available to the applicant on the grounds of the prison. The applicant stated that in August 2014 he was informed that the Governor would support an application for community release or temporary release and that he might be out in two or three weeks.

8 The applicant fully engaged with the prison regime and his behaviour was reported to be exemplary. He worked on the grounds seven days a week – that being the only structured activity made available to him – and he had his incentivised regime work-sheet fully stamped to reflect this.

9 With standard one-quarter remission as provided for in Rule 59(1) of the Prison Rules, the release day of the applicant would have been 18th November, 2014. It is not in dispute between the parties that the applicant engaged fully in authorised structured activities during his term of imprisonment and committed no breaches of prison discipline.

10 On 25th August, 2014, 17th September, 2014, and 21st October, 2014, the applicant applied to the Minister for temporary release, and a further application was made by the applicant's solicitor on 23rd October, 2014. The application of 23rd October, 2014, which was addressed to the Governor, Wheatfield Place of Detention, Clondalkin, Dublin 22, was in the following terms:

‘ Re: Mr Ivor Callely

We refer to our above-named client who has been detained in the Irish Prison Service since 28th July, 2014, under Prisoner Record No. 92995.

We understand that Mr. Callely was committed to Mountjoy Prison on 28th July, 2014 to serve a five month sentence imposed in the Dublin Circuit Criminal Court and he was thereafter transferred to Wheatfield on 1st August, 2014 where he is currently resident.

We understand that on admission our client was advised of an assessment that would be carried out within 72 hours directed at suitable placements or programmes for our client, but to date it appears that no such assessment has been carried out.

Our client was also advised at the outset of his imprisonment of programmes suitable for persons with shorter sentences, i.e. sentences of less than eleven months' duration and he was advised of his suitability for Community Release and/or Temporary Release.

From 2nd August, 2014 our client experienced a period of 23 hour lock-up in Wheatfield but we understand this was reviewed by you, the Governor and the 23 hour lock-up regime purportedly imposed pursuant to Rule 63 was lifted on 12th August, 2014 wherein our client was promised structured activity and indications were given to him that he would be recommended inter alia for Temporary Release.

Since then our client has fully engaged and he has reported seven-days for his ‘structured activity’ (see letter attached). Our client has also been accorded enhanced status, he has had no P19s or other disciplinary issues, he is not addicted to controlled substances, he has sufficient income to maintain himself and he has access to accommodation outside prison. Furthermore, he does...