Farrell v Governor of Portlaoise Prison and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan,Mr Justice Ryan
• Judgment Date: 05 August 2014
• Neutral Citation: [2014] IEHC 395,[2014] IEHC 392
• Court: High Court
• Docket Number: [2014 No. 1231 SS]
• Date: 05 August 2014

[2014] IEHC 392

THE HIGH COURT

[2014 No. 1231 SS]

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40 OF THE CONSTITUTION

BETWEEN/

NIALL FARRELL

APPLICANT

AND

GOVERNOR OF PORTLAOISE PRISON, THE IRISH PRISON SERVICE, MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Prisoner Rights – Sentence Remission – Early Release – Constitution – Practice and Procedures – Statutory Interpretation – Risk of Re-offending – Unlawful Detention

Facts: The issue before the Court in this application centred on the question of whether or not a prisoner who was of good conduct and who engaged in authorised structured activities within prison was entitled to remission of one third of his sentence having regard to the provisions of Rule 59(2) of the Prison Rules 2007 (S.I. No. 252 of 2007) (‘the 2007 Rules’)? In December 2011, the applicant, who had been in custody from December 2011, was sentenced to five years imprisonment for membership of an illegal organisation (Irish Republican Army). As the applicant was of good character and granted enhanced prisoner status on account of his work within the kitchens and willingness to educate himself whilst in prison, it was anticipated that with the one quarter remission provided for by Rule 59(1) of the 2007 Rules he would be released in September 2014. The applicant, however, contended that he was entitled to the one third remission under Rule 59(2) of the 2007 Rules and thus should have been released on the 1 ^st April 2014. Rule 59(2) of the 2007 Rules provides that one third remission may be granted where a prisoner has shown further 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. Such authorised activities included the educational training and work undertaken by the applicant. The applicant and his solicitor had engaged for some months with the Minister and Irish Prison Service over the issue of enhanced remission. On the 14 ^th February 2014, Mr Paul Mannering, an Assistant Principal Officer, replied by letter to the applicant”s queries regarding one third remission and informed him that he needed to submit evidence that he had engaged with the therapeutic services within the prison, in the context of offence focused work in order for his application to be considered. The applicant responded on 25th March 2014 detailing the various courses which he had taken in prison. His solicitor wrote on 4th June 2014 to the Governor of Portlaoise Prison requesting details of the therapeutic services which were available to the prisoners, which included Education. On 17 ^th June 2014, the applicant was informed that his application had been refused as he had not meet the criteria set out in Rule 59(2) – namely his failure to engage in offence focussed work which reduced his risk of re-offending. A further letter was received from the Operations Directorate of the Irish Prison Service on 7th July 2014 requesting the applicant to submit evidence of offence focused work (to be supported with the proper documentation) in order for his application to be considered. Given that the applicant contended that it was not clear what was meant by the term ‘offence focused work’ and as he maintained that he was in any event entitled to be released on the ground that he already met the enhanced remission requirements for the purposes of Rule 59(2) by satisfactorily engaging in authorised structured activities, the present proceedings were commenced. The Minister stressed that, the applicant had not engaged with the Probation Services with a view to reducing the risk of re-offending. She pointed to the fact that the applicant could, for example, have availed of a specific eight week course dealing with offending behaviour, but did not do so. She also stated that the applicant had associated with other members of an illegal organisation in the E-block of Portlaoise Prison where he resided and was therefore likely to reoffend.

Held by Justice Hogan that, it was not clear whether or not the applicant was ever informed that participation in particular structured activities was not in itself enough and that it was also necessary to participate in other types of courses or to engage with the Probation Services and to disassociate with those other professing to be ‘political’ prisoners by virtue of their association with an illegal organisation. Having examined the applicable statutory framework for the power to remit sentences and Article 13/6 of the Constitution, Justice Hogan determined that it was necessary to examine whether that power had been exercised in a manner compatible with the law. In examining the elements of Rule 59(2), it was stated that a prisoner must show good conduct by engaging in authorised structured activities, and secondly, that the Minister must be satisfied that the prisoner is less likely to reoffend. With this in mind Justice Hogan reasoned that the issue was not whether, a prisoner would be more likely to re-offend as a matter of abstract prediction, but rather, whether by reason of the prisoner”s participation in authorised structured activities, he was thereby less likely to re-offend. Acknowledging that the Minister had taken advice from a range of individuals, including, An Garda Síochána, who were concerned that the applicant would reoffend Justice Hogan stated that whilst this opinion may be valid, it was not a factor that the Minister should have taken into account for the purposes of the Rule 59(2) application. The single question permitted by Rule 59(2) was whether the Minister was satisfied that by reason only of a prisoner”s participation in authorised structured activities, that prisoner is less likely as a result to re-offend and to re-integrate into the community. According to Justice Hogan, the applicant had engaged in authorised structured activities, including enhancing his education and undertaking approved work. Thus, he found that the applicant had satisfied the criteria set out in Rule 27(2) and Rule 59(2), in that the applicant had participated in permitted structured activities which reduced the risk of the applicant reoffending. In adopting the reasoning of Justice Barrett in Ryan v. Governor of Midlands Prison [2014] IEHC 358, Justice Hogan reasoned that the Minister had had regard to a number of irrelevant considerations and had failed to apply the correct test contained in Rule 59(2). Firstly, Rule 59(2) did not distinguish between different types of structured activities. Thus, Justice Hogan was of the opinion that all that was required was that the structured activities in question were authorised. Secondly, it was reasoned that a prisoner could not be faulted or disadvantaged by reason of the fact that he had not participated in particular types of such activities - such as engagement with the Probation Service or participation in ‘offence focused work’ - provided that he had otherwise successfully participated in authorised structured activities. Thirdly, it was determined that if there were indeed in practice a requirement that an applicant must participate in particular types of courses, this should have been explained to the prison population. Just as in Ryan, there was no evidence that this was ever done. Indeed, as the response from the Governor of the 13th June 2014 in the present case made clear, prisoners were free to engage with such of the therapeutic services as met their needs. Fourth, in any event, if there were indeed such a requirement, this would amount de facto to an amendment of the 2007 Rules. According to Justice Hogan, Rule 59(2) did not distinguish between different types of authorised structured activities and all have equal value so far as the enhanced remission was concerned. Absent, therefore, a formal amendment of Rule 59 which was duly promulgated and published, such an administrative practice purporting to stipulate some ex ante requirement of this kind would be unlawful. Consequently, Justice Hogan determined that had the appropriate legal tests been applied, then the Minister would have bound to have concluded in the circumstances that the applicant satisfied the requirements of Rule 59(2). Indeed the Court was of the opinion once the applicant had successfully participated in the authorised structured activities, he was entitled to enhanced remission under Rule 59(2), not as a matter of any real discretion on the part of the Minister, but rather in effect as a matter of law having regard in particular to the definition of authorised structured activities in Rule 27(2). On this basis, therefore, he should have been released on 1st April 2014. It was determined that the applicant was in unlawful custody and his release was ordered.

Mr. Justice Gerard Hogan

JUDGMENT of Mr. Justice Gerard Hogan delivered the 5th day of August, 2014

1 Where a prisoner is of good conduct and engages in authorised structured activities within the prison, is that prisoner entitled to enhanced remission of one third of his or her sentence having regard to the provisions of Rule 59(2) of the Prison Rules 2007 (S.I. No. 252 of 2007) (‘the 2007 Rules’)? That is essentially the issue that is presented in this application for the release of the applicant pursuant to Article 40.4.2 of the Constitution.

2 In December 2011, the applicant, Mr. Farrell, was sentenced by the Special Criminal Court to a term of five years imprisonment for membership of an illegal organisation, contrary to s. 21 of the Offences Against the State Act 1939 (as amended). The applicant had previously gone into custody in December 2010 and the sentence accordingly took effect from that earlier date. As the applicant has been of good behaviour it is anticipated that with the one quarter remission provided for by Rule 59(1) of...