Darren Doody v Governor of Wheatfield Prison and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 04 March 2015 |
| Neutral Citation | [2015] IEHC 137 |
| Court | High Court |
| Date | 04 March 2015 |
[2015] IEHC 137
THE HIGH COURT
BETWEEN
AND
Crime and sentencing – S. 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001 – Rule 59 of the Prison Rules 2007 – Enhanced remission – Reasoned decision
Facts: The applicant sought an order of certiorari quashing the respondent's decision of refusal of the applicant's application for one third remission after having received the normal one quarter of remission on account of good behaviour. The applicant sought an order of mandamus directing the respondents to provide reasons for their decision. The applicant contended that the decision of the respondents was unfair as the applicant fulfilled all the conditions required under Prison Rules and there was a failure to disclose the information contained in the Gardai report to him.
Mr. Justice Noonan dismissed the application of the applicant. The Court held that the decision of the respondents in refusing to grant the enhanced remission was in conformity of the Prison Rules. The Court found that the respondents clearly stated that the applicant's. 14 prior convictions, gravity of offence, likelihood of re-offend and potential threat to the safety of public were the reasons behind the decision for refusal of remission notwithstanding the applicant's full participation in the authorized activities in the prison. The Court observed that no doubt that the participation in the structured activities in prison would aim to reintegrate the applicant into the community yet the negative Gardai report could not in any circumstances be negated.
JUDGMENT of Mr. Justice Noonan delivered the 4th day of March, 2015
1. In the within judicial review proceedings, the applicant seeks the following reliefs:
(1) An order of certiorari quashing the respondent's decision made on the 29 th of October 2014 to refuse the applicant's application for one third remission.
(2) A declaration that the respondents failed to consider, properly or at all, the applicants application for one third remission before refusing same.
(3) A declaration that the respondents, in making any administrative decision which may adversely affect the applicant, are obliged to set out full and proper reasons upon which that decision is based.
(4) A declaration, by way of application for judicial review, that the applicant is entitled to have his application for one third remission considered in accordance with the legislative basis provided for under Rule 59 of the Prison Rules 2007 and that the applicant's application may not be refused on the basis of unfounded assertions.
(5) An order of mandamus to provide the respondents full and proper reasons for the respondent's decision to refuse the applicants application for one third remission.
2. On the 23 rd of February 2012, the applicant was convicted of the offence of false imprisonment under s. 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (as amended). On the 26 th of March 2012, the applicant was sentenced to seven years imprisonment with the last three years suspended. The applicant was incarcerated in Wheatfield Prison where he is now on an enhanced regime. He is eligible for one quarter remission so that his expected release date is the 25 th of March 2014, being three weeks from now.
3. While in prison, the applicant completed the following training courses and achieved the following qualifications and certificates:
· Fetac certificate Setting Learning Goals
· Fetac certificate for Spanish
· First Aid qualification Fetac Level 5
· Fetac Level 3 Spanish
· Junior Certificate Spanish
· Two music certificates from the Associated Board of the Royal Schools of Music
· Grade 1 music certificate
· Grade 1 guitar certificate
· Rock School guitar certificate
· Occupational First Aid certificate
· Cardiac First Response Community certificate
· Health and First Aid in Action Programme certificate
· Alternative to Violence Level 1 certificate
· Alternative to Violence Level 2 certificate
· Relapse prevention course
· Mindfulness course certificate
· Pre-release course certificate.
4. In addition to the foregoing, the applicant attended 43 sessions with the prison psychology service between August 2013 and July 2014. These sessions consisted of personal and offence-focussed therapeutic work and in a letter dated the 6 th of November 2014, the prison counselling psychologist stated that the applicant had positively engaged in this work.
5. In March 2014, the applicant contacted the second respondent ("the IPS") to enquire about applying for one third remission and was advised by return of correspondence that he should speak to the Governor and the Integrated Sentence Management team who would be able to explain the different services available and help him put a structured plan in place. The applicant says that he followed that advice but that it emerged that he had in fact already completed all the courses.
6. It would appear that on the 5 th of July 2014, the applicant made an application for enhanced remission. By letter of the 22 nd of August 2014, Mr. Tony Hickey of the IPS responded to the application, which he noted was pending at the time, in order to inform the applicant that Rule 59(2) of the Prison Rules 2007 had been amended and furnishing him with a copy of the amended rule. Mr. Hickey advised the applicant that there had been no substantive change to the manner in which his application would be determined and he was not required to make any further submissions but could do so if he wished.
7. It would appear that a meeting took place on the 17 th of September 2014 at the prison in relation to the applicant's application for remission, although who was present and what was discussed are not known. By letter of the 24 th of September 2014, the applicant's solicitors corresponded with the IPS in relation to the application for remission and set out the detailed basis for the claim. By letter of the 29 th of October 2014 from Mr. Hickey sent directly to the applicant, the third named respondent ("the Minister") gave her decision on the application in the following terms:
"I refer to your application seeking to be considered by the Minister for Justice and Equality for increased remission under Rule 59 of the 2007 Prison Rules as amended."
The principles governing the awarding of remission are contained within Rule 59 of Statutory Instrument No. 252 of 2007 (the Prison Rules), as amended by S.L No. 385 of 2014. In sum, prisoners sentenced to a term of imprisonment qualify for one quarter remission on the basis of good behaviour. Further, prisoners may also receive remission of greater than one quarter but not exceeding one third of their sentence if they -
(i) demonstrate good behaviour by engaging in authorised structured activity, and
(ii) satisfy the Minister that as a result of (i) they are less likely to re-offend and would be better able to reintegrate into the community.
In considering whether a prisoner's engagement in authorised structured activity is likely to lead to the prisoner being less likely to re-offend or better able to reintegrate into the community, the Minister will take into account a number of factors including the following:
· The manner and extent to which the prisoner has engaged constructively in authorised structured activities;
· The manner and extent to which the prisoner has taken steps to address his or her offending behaviour;
· The nature and gravity of the of the offence to which the sentence of imprisonment being served by the prisoner relates;
· The sentence of imprisonment concerned and any recommendation of the court that imposed the sentence;
· The period of the sentence served by the prisoner;
· The potential threat to the safety and security of members of the public (including the victim of the offence to which the sentence of imprisonment being served by the prisoner relates);
· Any offence of which the prisoner was convicted before being convicted of the offence to which the sentence of imprisonment being served by him or her relates;
· The conduct of the prisoner while in custody or during a period of temporary release;
· Any report or recommendation made by the Governor, the Garda Siochana, probation officer or any other person whom the Minister considers would be of assistance in enabling him or her to make a decision on such an application.
The Minister having considered all of the above issues has decided to refuse your application as she is not satisfied that as a result of your engagement in authorised structured activity, that your are less likely to re-offend or better able to reintegrate into the community. The reasons for this decision are due to the nature and gravity of your offence and the potential threat to the safety and security of members of the public."
8. The applicant's solicitor responded in a further letter of the 12 th of November 2014 arguing that the basis for the refusal appeared to lie mainly with the seriousness of the offence and that such could not itself act as a bar to the applicant being granted additional remission. It was further argued that the threat to safety and security of members of the public had never previously been suggested and had no basis. Their client was completely unaware of any reason that such a conclusion could be drawn. The applicant proposed to seek relief in the High Court.
9. S.I. No. 252/2007 - Prison Rules,...
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