Edward Ryan v Governor of Midlands Prison

• Jurisdiction: Ireland
• Judge: Mr Justice Barrett
• Judgment Date: 02 July 2014
• Neutral Citation: [2014] IEHC 338
• Court: High Court
• Date: 02 July 2014

[2014] IEHC 338

THE HIGH COURT

1025/SS/2014

Ryan v Governor of Midlands Prison

IN THE MATTER OF AN ENQUIRY UNDER ARTICLE 40.4.2° OF THE CONSTITUTION OF IRELAND, 1937

BETWEEN

EDWARD RYAN

APPLICANT

AND

GOVERNOR OF MIDLANDS PRISON

RESPONDENT

PRISON RULES 2007 SI 252/2007 RULE 59(2)

PRISON RULES 2007 SI 252/2007 RULE 27(2)

MURRAY v IRELAND & AG 1991 ILRM 465 1991/4/999

KINAHAN v MIN FOR JUSTICE & ORS 2001 4 IR 454 2001/13/3766 2001 IESC 16

CONSTITUTION ART 40.4.2

FIREARMS ACT 1964 S27(A)(1)

PRISONS ACT 2007 S35

PRISONS ACT 2007 S35(2)(F)

PRISON RULES 2007 SI 252/2007 RULE 59(1)

BYRNE (A MINOR) v DIRECTOR OF OBERSTOWN SCHOOL 2014 1 ILRM 346 2013/8/2169 2013 IEHC 562

O'BRIEN v GOVERNOR OF LIMERICK PRISON 1997 2 ILRM 349 1997/5/1877

CALLAN v IRELAND & AG 2013 2 ILRM 257 2013/9/2420 2013 IESC 35

R (ON THE APPLICATION OF BLACK) v SECRETARY OF STATE FOR JUSTICE 2009 4 AER 1 2009 AC 949 2009 2 WLR 282 2009 UKHL 1

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202 1986/6/861

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237 1990/8/2141

LIVERSIDGE v ANDERSON 1941 3 AER 338 1942 AC 206 1941-1942 58 TLR 35

DEVOY v GOVERNOR OF PORTLAOISE PRISON & ORS UNREP EDWARDS 22.6.2006 2009/13/2911 2009 IEHC 288

KINSELLA v GOVERNOR OF MOUNTJOY PRISON 2012 1 IR 467 2011/31/8437 2011 IEHC 235

RULES FOR THE GOVERNMENT OF PRISONS 1947 SI 320/1947 RULE 38(1)

Prisoner – Early Release – Minister for Justice and Equality – Constitution of Ireland, Article 40 – Detention – Rehabilitation – Judicial Review - Discretion

The facts of this case involved an applicant prisoner, who continued lawfully to be detained by the State and questioned whether an order directing his release ought to be made at this time. The desired order for his release derives from Sec 59(2) of the Prison Rules 2007, and is the Minister for Justice and Equality who is empowered to grant additional remission to prisoners when a prisoner has shown good conduct by engaging in authorized structured activity and the Minister is satisfied that, as a result, the prisoner is less likely to re-offend and will be better able to reintegrate into the community following release. The Minster in a previous instance responded to the prisoner that orders of that kind were only to be used sparingly and in the most exceptional cases’, The applicant contended that this preconditioned discretion is irrational in circumstances where the purpose of Rule 59(2) is to encourage as many prisoners as possible to avail of the opportunities provided by authorized structured activities so that they may rehabilitate themselves The applicant sought to rely on Article 40 of the Constitution to strengthen his case for custodial release and the issue was brought before Barrett J. in the High Court.

Barrett J. considered the party submissions and the relevant statutory instruments. The respondent contended that the instant proceedings ought more properly to have proceeded by way of judicial review proceedings. However the applicant elected to proceed by way of application under Article 40 of the Constitution, a more broad and flexible means. Judicial review would not be of real avail to the applicant, as any decision to remit the decision for reconsideration by the Minister would not necessarily lead to any change in the continuance of the applicant”s detention. After considering the cases, Kinahan v. The Minister for Justice and Law Reform and Others Murray v. Ireland [1991] I.L.R.M. 465. Barrett J. concluded that the fact that there is a discretionary element under Rule 59(2) as to the extent of the remission to be applied, a degree of remission earned but irrationally and unjustly refused taints the balance of the term of imprisonment with illegality; certainly the entirety of the balance of sentence remaining cannot be lawful. Barrett J. found that the applicant”s continued detention at Midlands Prison is not in accordance with law. In accordance, therefore, with the requirements of Article 40.4.2° of the Constitution, it follows that he be release from custody.

1 JUDGMENT of Mr Justice Barrett delivered on the 2nd day of July, 2014

2 1. The central issues in these proceedings are whether Mr. Ryan, a prisoner, continues lawfully to be detained by the State and whether an order directing his release ought to be made at this time. Having had full regard to the arguments of the parties to these proceedings and the evidence adduced by each of them, the court concludes in its judgment that:

3 (1) under Rule 59(2) of the Prison Rules 2007, the Minister for Justice and Equality is empowered to grant additional remission to prisoners when a prisoner has shown good conduct by engaging in authorised structured activity and the Minister is satisfied that, as a result, the prisoner is less likely to re-offend and will be better able to reintegrate into the community following release;

4 (2) the Minister is required to use that power in a manner consistent with the purpose of the statutorily grounded remission regime;

5 (3) the policy behind Rule 59(2) appears to be one of seeking to incentivise and reward engagement by prisoners in a pro-active manner in authorised, structured, voluntary activity, with a view to ensuring that they are less likely to re-offend and better able to reintegrate into the community following release;

6 (4) the information put to the Minister for Justice and Equality prior to his determining, pursuant to Rule 59(2), whether or not to grant additional remission to Mr. Ryan, was largely deficient;

7 (5) Mr. Ryan has engaged in various authorised, structured, in-prison activities;

8 (6) Mr. Ryan has not engaged in certain authorised, structured, in-prison activities because they coincide in time with, or are less attractive to him as an individual than, others;

9 (7) all authorised structured activities, it is clear from Rule 27(2) of the Prison Rules, have as their equal object making a prisoner "when released from prison, less likely to re?offend or better able to re-integrate into the community";

10 (8) despite this equality of object, it appears from the argument and evidence in these proceedings that some authorised structured activities are viewed by the authorities as better than others when it comes to ensuring that a prisoner is less likely to re-offend and better able to reintegrate into the community following release;

11 (9) the fact that some authorised structured activities are apparently so preferred was never advised to Mr. Ryan, nor does it appear that this fact has ever been advised to the general prison population;

12 (10) there is no suggestion that any one of the many authorised structured activities offered by the Prison Service is in any way deficient as regards ensuring that a prisoner is both less likely to re-offend and so better able to re-integrate into the community following release;

13 (11) the exercise of a jurisdiction to commute or remit sentence is a constitutionally reserved function which, by virtue of statute, rests with the Minister for Justice and Equality, and the Minister's views as to the status and merits of a prisoner will typically determine the issue of whether a prisoner should be granted remission and also the extent of any such remission;

14 (12) the control and management of the nation's prison system, and of prisoners within that system, has been entrusted by the Oireachtas to the Executive and is an area in which the Executive enjoys a wide discretion, subject of course to the Constitution and the law;

15 (13) the Minister in reaching his decision on Mr. Ryan's application for additional remission had before him deficient information to which he ought not to have had regard, and also did not have regard to certain information (the full truth as to Mr. Ryan's participation in authorised, structured, in-prison activities) to which he should have had regard;

16 (14) the Minister, in stating, as he did, that he would only exercise his power under Rule 59(2) " sparingly and in the most exceptional cases", has imposed a pre-condition to, or fetter on, the exercise of his discretion that is irrational in circumstances where the purpose of Rule 59(2) is to encourage as many prisoners as possible to avail of the opportunities provided by authorised structured activities so that they may rehabilitate themselves and so lessen the chance of their re-offending, and better their prospects of reintegration, post-release;

17 (15) by viewing the application of the Rule 59(2) discretion as something to be exercised exceptionally, the Minister has in effect re-written Rule 59(2) so that the facility of up to one-third remission thereunder is now reserved for an undefined class of prisoners who meet some vague standard of exceptionality; this 're-writing' distorts, and may largely obviate, the availability of remission under Rule 59(2) notwithstanding that a prisoner satisfies the various requirements of same;

18 (16) to the extent that the Minister has (i) acted irrationally or (ii) fettered his role or (iii) preferred one form of authorised structured activity over another when such preference was never previously advised to Mr. Ryan or, it appears, the general prison population, the court considers that this case presents with that capriciousness, arbitrariness or, at the very least, unjustness, to which McCarthy J. refers in Murray v. Ireland [1991] I.L.R.M. 465 at p.473, his judgment in this regard later being referred to with approval by Hardiman J. in Kinahan v. Minister for Justice [2001] 4 I.R. 454 at p.459;

19 (17) a decision-maker in its actions can achieve such capriciousness, arbitrariness or unjustness aforesaid, notwithstanding that somewhere in the spray of reasons offered by a...