H.S. v Minister for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 13 May 2025
• Neutral Citation: [2025] IEHC 271
• Docket Number: RECORD NO. 2024 / 399 JR

Between:

H.S.

Applicant

and

Minister for Justice

Respondent

[2025] IEHC 271

RECORD NO. 2024 / 399 JR

THE HIGH COURT

JUDICIAL REVIEW

Enhanced remission – Inadequate reasoning – Mootness – Applicant challenging the refusal of his application for enhanced remission – Whether the proceedings were moot

Facts: The applicant applied to the High Court challenging the decision of the respondent, the Minister for Justice (the Minister), to refuse his application for enhanced remission pursuant to Rule 59 of the Prison Rules, 2007 (SI 252 of 2007 as amended by SI 385 of 2014), principally on the basis that the decision was not adequately reasoned but also on the basis that it was not supported by the material before the Minister and was therefore unreasonable in law. The sentence in respect of which the applicant applied for enhanced remission had expired. He was no longer in custody with the result that it was contended on behalf of the Minister that the proceedings were moot.

Held by Phelan J that, although she was satisfied that there may well be cases in which the decision-maker ought properly to go further and state why he is not satisfied that the likelihood of re-offending was not reduced and the ability to re-integrate into the community not enhanced to a degree warranting some enhanced remission on sentence, in view of the requirements of judicial restraint, she did not propose to make a finding on the adequacy of reasons in the case without first considering the mootness issue which had been raised on behalf of the Minister. It seemed to Phelan J that even if she were to find that there was an inadequacy of reasoning on the facts and circumstances of the case, a further question arose as to whether it would be appropriate to exercise a discretion to grant relief in respect of that refusal where the applicant was no longer in custody as his sentence was spent. Furthermore, it seemed to Phelan J that the very rationality of the decision, also challenged in the proceedings, was secondary to a decision on the adequacy of the reasons given. Phelan J held that it was established as a general rule that, where proceedings are moot, the Court should not determine the issues. Phelan J noted that, as set out in Lofkinmakin v Minister for Justice [2013] IESC 49, there are exceptions to that general rule, including where one or both parties has a material interest in a decision on a point of law of exceptional public importance or where the case is a test case with many other cases adjourned pending the decision on the case before the Court. Phelan J found that no such exceptional circumstances had been established in the case. Phelan J held that she must therefore refuse to determine the legal grounds of challenge urged on behalf of the applicant. Phelan J held that there was no longer a real purpose to granting relief in respect of a failure to adequately reason (or for that matter a quashing order on rationality grounds) in the proceedings because there was no prospect of securing a different decision at this stage; nor had it been established that a decision in the case had systemic significance which might otherwise escape adjudication in breach of rights of access to the courts. Accordingly, Phelan J decided that the proper course was to refuse to determine the substantive issue in the proceedings and dismiss the application.

Phelan J, for the reasons given above, refused the relief sought and dismissed the proceedings.

Application refused.

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 13 ^th day of May, 2025

INTRODUCTION

1 . The Applicant challenges the Minister's decision to refuse his application for enhanced remission pursuant to Rule 59 of the Prison Rules, 2007 (SI 252 of 2007 as amended by SI 385 of 2014) (hereinafter “the Prison Rules”), principally on the basis that the decision was not adequately reasoned but also on the basis that it was not supported by the material before the Minister and is therefore unreasonable in law.

2 . A notable feature of this case is that the sentence in respect of which the Applicant applied for enhanced remission has expired. He is no longer in custody with the result that it is contended on behalf of the Minister that the within proceedings are moot.

BACKGROUND

3 . The Applicant was born in 1960. It was contended that he had a dysfunctional childhood and as a young man he developed a dependency on alcohol. In 2003, he committed a serious sexual offence against an adult woman to which he pleaded guilty and was sentenced to 16 years in prison. He did not appeal against that sentence.

4 . While serving his sentence, the Applicant engaged extensively with the psychological and rehabilitative services available to him within the Prison Service. He completed the Building Better Lives Sex Offenders' course along with levels 1, 2 and 3 of an Alternatives to Violence program and an anger management course. In addition, he engaged in approximately 70 therapy sessions with the prison psychologist. He further engaged with the 12 step Alcoholics Anonymous (hereinafter “AA”) programme. He also pursued third level education completing both undergraduate and master's degrees, performing to a very high level. He converted to Sufism and, it is claimed, developed and nurtured bonds with his local faith community in Portlaoise. He also engaged in work and other constructive activities within the prison.

5 . In recognition of his good behavior and participation in structured activities, the Applicant was upgraded to the enhanced level of privileges within the prison system.

6 . As the Applicant was nearing the end of his sentence, two of his younger sisters made complaints of historical sexual abuse against him dating back to the 1970s and 1980s at a time when the victims were minors and the Applicant was aged 15 to 20 years old. He was charged with these offences.

7 . After finishing his 16-year sentence in 2018, the Applicant was further remanded in custody on the charges arising from complaints made by his sisters. He was released following a successful application for prohibition but when the prohibition order was overturned following appeal on behalf of the DPP to the Court of Appeal, he was granted bail on restrictive terms. He was at liberty for approximately 2 and a half years from March, 2019, to September, 2021.

8 . During the time that the Applicant was at liberty, he secured private rented accommodation. When he was on bail, he adhered to all bail conditions and to the requirements arising from his designation in 2006 as a sex offender. He did not come to the adverse attention of the Gardaí. While at liberty, he remained a regular attendee at AA meetings and at his local mosque and established a marital family with a fellow member of his faith community.

9 . On the 29 ^th of September, 2021, the Applicant was convicted after trial in the Central Criminal Court of rape and numerous counts of indecent assault against his two younger sisters, when they were minors, more than forty years previously. He was then re-admitted to custody.

10 . On the 2 ^nd of March, 2022, the Applicant was sentenced to an effective total of five years imprisonment in respect of the offences against his minor sisters. The sentences were backdated to the 2 ^nd of September, 2020, to take account of the time already spent on remand. The Central Criminal Court made an order for post release supervision pursuant to the Sex Offenders Act, 2001.

11 . On the 20 ^th of November, 2023, while in custody in Arbour Hill Prison, the Applicant made an application to the Minister for enhanced remission in accordance with Rule 59(2) of the Prison Rules using the Form available for this purpose, supported by a letter. He furnished the Minister with information about his engagement in authorised structured activities while in prison and the effect of that engagement upon him. He referred to the courses about to be completed (FETAC Level 5 in Sound Engineering and Level 3 in German) and his extensive educational achievements in prison since 2006 (including a B.A. (Hons) and M.A.) in consequence of which he claimed to be better qualified for employment and to have much improved self-confidence and self-esteem and a better understanding of his duties as a citizen. He relied on these factors as supporting a conclusion that he would be less likely to re-offend and better able to re-integrate into the community. He stated:

“as a result of my work on the building better lives and my extensive work with Dr. Cora Bruton using Schema therapy I gained an insight into the causes of my offending and in particular during and as a result of this Schema therapy I dealt with the trauma particularly early childhood trauma that was at the basis of my offending.”

12 . The Applicant further referred to the fact that the obvious change in his behaviour and character over the previous ten years was and must have been observable to the prison authorities and was evidenced by the period from April, 2019, to September, 2021, when he was not in custody.

13 . The application for enhanced remission was acknowledged by letter dated the 18 ^th of December, 2023. It was noted that if he was granted enhanced remission, the Applicant's new release date would not be until January 2024 (some two weeks later) and he was informed that a decision would be made closer to this date.

14 . The Applicant wrote a reminder letter on the 2 ^nd of January, 2024, pointing out that were he to be granted one third enhanced remission then his release date would have been the 1 ^st of January, 2024. He requested a decision on his application.

15 . The Applicant's reminder letter appears to have crossed with the Minister's decision letter. On the 2 ^nd of January, 2024, the Minister, by way of delegation to a member of the Operations Directorate of the Irish Prison Service, decided to...