Grogan v Parole Board & Min for Justice

JurisdictionIreland
JudgeMr. Justice McMahon
Judgment Date27 June 2008
Neutral Citation[2008] IEHC 204
Judgment citation (vLex)[2008] 6 JIC 2703
CourtHigh Court
Date27 June 2008

[2008] IEHC 204

THE HIGH COURT

[No. 1376 J.R./2005]
Grogan v Parole Board & Min for Justice

BETWEEN

LIAM GROGAN
APPLICANT

AND

THE PAROLE BOARD AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS

CRIMINAL JUSTICE (LEGAL AID) ACT 1962

CONSTITUTION ART 40.3.1

DPP, PEOPLE v CAHILL 1980 IR 8

O'BRIEN v GOV OF LIMERICK PRISON 1997 2 ILRM 349

DPP v FINN 2001 2 IR 25 2001 2 ILRM 211

MURRAY & MURRAY v IRELAND 1991 ILRM 465

KINAHAN v MIN JUSTICE 2001 4 IR 454

BARRY v SENTENCE REVIEW GROUP & MIN FOR JUSTICE 2001 4 IR 167 2001/1/282

CONSTITUTION ART 40 13.6

CRIMINAL JUSTICE ACT 1951 S23(1)

CRIMINAL JUSTICE ACT 1951 S23(3)

CRIMINAL JUSTICE ACT 1951 S23A(1)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S17

PRISONS ACT 2007 S35(2)(f)

PRISON RULES 2007 SI 252/2007 ART 59

PRISON RULES 2007 SI 252/2007 ART 59(3)

CIVIL LEGAL AID ACT 1995

CRIMINAL JUSTICE LEGAL AID ACT 1962

O'DONOGHUE v LEGAL AID BOARD & ORS 2006 4 IR 204

HEALY, STATE v O'DONOGHUE 1976 IR 325

O, STATE v DALY 1977 IR 312

MENTAL TREATMENT ACT 1945

K SECURITY LTD & KAVANAGH v IRELAND UNREP GANNON 15.7.77 1977/5/886

CONDON v CIE UNREP BARRINGTON 16.11.84 1985/1/52

REGULATION OF RAILWAYS ACT 1871

HAUGHEY, IN RE 1971 IR 217

MALOCCO v DISCIPLINARY TRIBUNAL UNREP CARROLL 16.10.2002 2002/16/3861

MCBREARTY v MORRIS & AG UNREP PEART 13.5.2003 2003/39/9373

CORCORAN v MIN SOCIAL WELFARE 1991 2 IR 175

SOCIAL WELFARE (CONSOLIDATION) ACT 1981

KIRWAN v MIN FOR JUSTICE 1994 2 IR 417

MAGEE v FARRELL & ORS UNREP GILLIGAN 26.10.2005 2005/37/7652 2005 IEHC 388

C (M) v LEGAL AID BOARD 1991 2 IR 43

S v LANDY & ORS UNREP HIGH COURT LARDNER 10.2.1993/5/1430

EUROPEAN CONVENTION ON THE TRANSFER OF SENTENCED PERSONS 1983 ART 10

TRANSFER OF SENTENCED PERSONS ACT 1995 S6(5)

CRIMINAL LAW

Legal Aid

Sentence - Review - Parole - Application for legal aid for assistance with preparation of submissions - Whether right to funding outside criminal context - Right to liberty - Separation of powers - Jurisdiction of executive - Onus on applicant to establish that failure to provide funding would result in serious breach of constitutional right - Privilege of review system - Advisory role of parole board - Right to fair procedures - Non-adversarial nature of review process - Repatriation - Ability of applicant to make appropriate submissions - People v Cahill v [1980] IR 8, O'Brien v Governor of Limerick Prison [1997] 2 ILRM 349, People (DPP) v Flynn [2001] 2 IR 25, Murray v Ireland [1991] ILRM 465, Kinahan v Minister for Justice [2001] 4 IR 454, Barry v Sentencing Review Group [2001] 4 IR 167, State (Healy) v Donoghue [1976] IR 325, Cahill v Reilly [1994] 3 IR 547, O'Donoghue v Legal Aid Board (Unrep, Kelly J, 21/12/2004), State (O) v Daly [1977] IR 312, State (O) v O'Brien [1973] IR 50, K Security Ltd v Ireland (Unrep, Gannon J, 15/7/1977), Condon v CIE (Unrep, Barrington, 22/11/1984), Re Haughey [1971] IR 217, Malocco v Disciplinary Tribunal (Unrep, Carroll J, 16/12/2002), McBrearty v Morris (Unrep, Peart J, 13/5/2003), Corcoran v Minister for Social Welfare [1991] 2 IR 175 considered; Kirwan v Minister for Justice [1994] 2 IR 417, Magee v Farrell [2005] IEHC 388 (Unrep, Gilligan J, 26/10/2005), MC v Legal Aid Board [1991] 2 IR 43 and Stevenson v Laney (Unrep, Lardner J, 20/2/1993) distinguished - Constitutiopn of Irleand 1937, art 13 - Convention on Transfer of Sentenced Persons 1983, article 10 - Criminal Justice Act 1951 (No 2), s 23 - Transfer of Sentenced Persons Act 1995 (No 16), s 6 - Criminal Justice (Miscellaneous Provisions) Act 1997, s 17 - Prison Rules 2007 (SI 252/2007), r 59(3) - Application for legal aid refused (2005/1376JR - McMahon J - 27/6/2008) [2008] IEHC 204

Grogan v Parole Board

Facts: the applicant was sentenced to 22 years imprisonment in England and repatriated to the State to serve the remainder of his sentence. He applied for and was refused legal aid funding for legal assistance in making written submissions to the respondent which was conducting his parole hearing. He sought to judicially review that refusal.

Held by Mr Justice McMahon in refusing the relief sought that:

1. any exercise of the power to commute or remit punishment was a privilege and not a right and there was no constitutional obligation on the executive to introduce schemes for early release of prisoners and if it did so, the exercise of such powers could only be interfered with by the courts if they had been exercised arbitrarily or unjustly.

2. That the constitutional entitlement to legal aid was confined to proceedings where the person was facing a criminal charge and there was no entitlement to legal aid where a citizen was obliged to appear before a tribunal other than the courts, although it could have significant consequences for him. The onus was, therefore, on an individual alleging a right to legal aid outside the criminal context to convince the court that failure to fund him would result in a serious breach of a constitutional right.

3. That the right to fair procedures presupposed a legal hearing where decisions would be made which could affect the applicant’s rights or have serious consequences of a legal nature.

4. That there was no specific statutory provision for legal aid funding to enable the preparation of written submissions to the respondent and there was no obligation on the respondent to serve documentation, to which prisoners were entitled, on their solicitors.

Reporter: P.C.

1

Mr. Justice McMahondelivered on the 27th day of June, 2008

1. Background
2

The applicant is in custody in Portlaoise prison, serving a 22 year sentence for conspiring to cause an explosion with intent to endanger life or damage property in London. The sentence was imposed by the Central Criminal Court, sitting at the Old Bailey, London, England in May, 1999. The applicant was repatriated to Ireland to serve his sentence in November, 2000. In July, 2005 the applicant became eligible to have his sentence reviewed by the parole board ("first respondent"), as seven years had elapsed since the imposition of the sentence. In preparation for his review the applicant contacted a solicitor and asked him to assist in the preparation of a legal submission to the parole board. The applicant nominated his solicitor to take receipt of documentation from the parole board on his behalf. The parole board agreed to furnish relevant documentation to the applicant but not to his solicitor, although it indicated that the applicant was entitled to disclose the same to his own solicitor. Theparole board also indicated that although legal submissions could be submitted to the board, no specific funding was available for the preparation or submission of same.

3

Neither the Attorney General's Scheme, a non-statutory scheme administered by the Department of Justice, Equality and Law Reform which covers legal fees for impecunious persons in certain criminal matters, nor the Criminal Legal Aid Scheme, which is provided for by the Criminal Justice (Legal Aid) Act 1962, allows for remuneration for the preparation of legal submissions to the parole board. The applicant argues that since his right to liberty is at stake and he is not in a position to adequately represent himself, the constitutional right to basic fairness by virtue of Article 40.3.1 of the Irish Constitution requires that the applicant be furnished with legal aid for the preparation of the aforesaid legal submissions.

2. The Applicant
4

While in university in Dublin, the applicant in the final year of his commerce degree joined the real IRA. The day after he went to London in July, 1998 he was arrested and was subsequently convicted. The judge who sentenced him indicated that he was satisfied that the applicant had not intended to endanger life but to damage property only.

5

The applicant has since that date disassociated himself from the real IRA, with which he was associated as an undergraduate and is now of the opinion that such organisations should disband. The applicant graduated from UCD in 1998 and while serving his sentence he has obtained a law degree (October, 2006) and has also completed a course in criminology.

3. Legal Context
6

Of major importance in the present case is the distinction between the normal right to liberty on the one hand, and the entitlement to release once lawfully incustody on the other hand. One's liberty is a constitutional right which can only be taken from one in a lawful manner. Normally this will involve a full criminal trial, where full due process must be accorded to the accused. If this is observed, however, and a custodial sentence is imposed, one moves into a different frame of legal reference. The prisoner is then handed over to the executive to execute the punishment lawfully imposed by the courts. In a large measure the due process stage is over and whatever rights the prisoner may have while in custody, they do not arise from his right to a fair trial or from the courts' obligation to administer justice in that context. (Article 34 and 38 of the Constitution).

7

When the prisoner is entrusted to the executive, the executive is obliged to carry out the sentence of the court. It cannot look behind the sentence or question its fairness, for to do so would disturb the delicate balance struck by the separation of powers as enshrined in the Constitution. (The converse is also true: when the judiciary trespass on the executive's jurisdiction it will be struck down by the courts: The People v. Cahill [1980] I.R. 8; O'Brien v. Governor of Limerick Prison [1997] 2 I.L.R.M. 349; The People (D.P.P.) v. Finn [2001] 2 I.R. 25) That the sanctity of the judicial process will also be respected where the prisoner is repatriated to serve his term in his native country, is clear from the international conventions permitting such repatriation and to which...

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4 cases
  • Shaw v Minister for Justice and Equality
    • Ireland
    • High Court
    • 9 March 2018
    ...of the procedure set up by the second respondent.’ 98 The approach of Butler J. was adopted by McMahon J. in Grogan v. Parole Board [2008] IEHC 204. 99 The respondents submit that the relevant jurisprudence on the question of the entitlement to an oral hearing is that set out in Barry and G......
  • M.C. v The Legal Aid Board
    • Ireland
    • Court of Appeal (Ireland)
    • 19 December 2018
    ...be at risk of punishment by way of criminal sanction. 23 In Grogan v. The Parole Board and Minister for Justice, Equality and Law Reform [2008] IEHC 204 from p. 10, McMahon J. reviewed the authorities on the right to civil legal aid and said at p. 13:- ‘From the above it can be seen that t......
  • Doyle v Min for Justice and Others
    • Ireland
    • High Court
    • 20 November 2015
    ...In this it seems quite distinct from the general executive power of remission." 50 It is submitted that in Grogan v Parole Board [2008] IEHC 204 McMahon J. made the same distinction between the constitutional power to pardon and commute and the purely statutory power to grant temporary rele......
  • Finnegan v Superintendent of Tallaght Garda Station
    • Ireland
    • Court of Appeal (Ireland)
    • 27 July 2017
    ...no procedure to determine whether a sentence absconded from remains outstanding and ought to be served. 25 In Grogan v. The Parole Board [2008] IEHC 204 the High Court dismissed a claim for legal aid for the preparation of submissions for the parole board. McMahon J., at p. 17, observed tha......
1 books & journal articles

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