Corish v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Neill
• Judgment Date: 13 January 2000
• Neutral Citation: [2000] IEHC 1
• Docket Number: [1999 No. 423 J.R.]
• Court: High Court
• Date: 13 January 2000

[2000] IEHC 1

THE HIGH COURT

No. 423 JR/1999

CORISH v. MINISTER FOR JUSTICE EQUALITY & LAW REFORM & ORS

JUDICIAL REVIEW

BETWEEN

STEPHEN CORISH

APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND THEGOVERNOR OF CASTLEREA PRISON, IRELAND AND THE ATTORNEYGENERAL

RESPONDENTS

Citations:

MISUSE OF DRUGS ACT 1977 S15(1)

MISUSE OF DRUGS REGS 1979 SI 32/1979 ART 4(1)(b)

MISUSE OF DRUGS ACT 1977 S5

TEMPORARY RELEASE OF OFFENDERS (CASTLEREA) RULES 1998 SI 157/1998 ART 3

CRIMINAL JUSTICE ACT 1960 S2(1)

CONSTITUTION ART 15.2

TEMPORARY RELEASE OF OFFENDERS (CASTLEREA) RULES 1998 SI 157/1998 ART 4

Synopsis

Prisons

Temporary release; ultra vires; supply of drugs offences; judicial review; certiorari; applicant refused temporary release by Governor of Castlerea Prison on ground that current policy was not to grant temporary release to offenders serving sentences for the supply of drugs; whether decision invalid having regard to the Temporary Release of Offenders (Castlerea) Rules, 1998 (S.I. No. 157 of 1998); whether art. 4, Rules of 1998 ultra vires the power of the respondent; s.2, Criminal Justice Act, 1960; art. 3, Rules of 1998.

Held: Decision in conformity with the Rules of 1998; art. 4, by purporting to allow the respondent to deny temporary release to prisoners on the basis of a category into which they fall, is ultra vires.

Corish v. Minister for Justice - High Court: O'Neill J. - 13/01/2000 - [2000] 2 IR 548

The applicant, whilst serving a sentence for drug possession, sought to avail of temporary release. The prison authorities refused the request. The applicant initiated judicial review proceedings claiming, inter alia, that the ministerial policy to treat drug offenders as a special category of prisoners was in breach of his constitutional rights. O'Neill J held that the terms of the Criminal Justice Act, 1960 did not permit the Minister to deal with prisoners on a category basis. The regulations which therefore purportedly granted the power to the Minister to act in such a manner exceeded and were ultra vires the provisions of the Criminal Justice Act, 1960.

1 EX TEMPORE JUDGMENT of Mr. Justice O'Neilldelivered on the 13th day of January 2000

2 The Applicant in this matter is currently serving a sentence in Castlerea Prison having been convicted on Bill No. - 0007-97 at the Castlebar Circuit Criminal Court, sitting at Westport, before his Honour Judge Harvey Kenny on the 17th February 1998 on charges of possession of a controlled drug for the purposes of supplying it to another contrary to section 15, subsection 1 of the Misuse of Drugs Act, 1977and contrary to Article 4(1)(b) of the Misuse of Drugs Regulations, 1979 as made under section 5 of the Misuse of Drugs Act, 1977.

3 The Applicant was sentenced to a period of five years imprisonment with the latter two years of his sentence to be suspended. The sentence was to run from the 20th day of January 1998.

4 The Applicant applies to the Second named Respondent, the Governor of Castlerea Prison for temporary release and this application was refused by letter dated the 9thJune 1999. At paragraph 3 of the said letter, Mr. John Kenny, of the Prisons Operation Division at the Department of Justice, Equality and Law Reform states:-

"With reference to the question of temporary release, it is current policy not to grant this concession to offenders serving sentences for the supply of drugs".

5 As a result of the said letter the Applicant initiated proceedings in November 1999 and obtained leave by way of an Order from Mrs. Justice McGuinness on Monday the 15th November 1999 to pursue the release as set out in the Applicant's statement grounding the application for a Judicial Review.

6 The case made by the Applicant comes in three layers as follows:-

7 1. The Applicant claims that the validity of the decision by the Respondent to refuse the Applicant temporary release on the grounds that the Applicant is a member of a category of persons ineligible for temporary release is contrary to the Regulations set out is Statutory Instrument no. 157 of 1998.

8 2. The Applicant challenges the validity of the said Regulations on the basis that they are ultra vires the provisions of section 2(1) of the Criminal Justice Act, 1960.

9 3. The Applicant claims that the provisions of section 2(1) of the Criminal Justice Act, 1960are unconstitutional in that they amount to an unwarranted delegation of its legislative powers by the Oireachtas, to the executive contrary to Article 15.2 of...