Kelleher v Irish Prison Service and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Liam Kennedy
• Judgment Date: 09 May 2025
• Neutral Citation: [2025] IEHC 253
• Docket Number: [Record No. 2024/1120JR]

Between

Gerard Kelleher

Applicant

and

The Irish Prison Service,

The Minister for Justice and Equality, Ireland

and

The Attorney General

Respondents

[2025] IEHC 253

[Record No. 2024/1120JR]

AN ARD-CHÚIRT

THE HIGH COURT

Temporary release – Eligibility – Mootness – Respondents seeking to stay the proceedings on the basis that they were moot – Whether it was in the interests of the due and proper administration of justice that the appeal be permitted to continue

Facts: The respondents, the Irish Prison Service, the Minister for Justice and Equality, Ireland and the Attorney General, concluded that the applicant, Mr Kelleher, was serving a minimum mandatory period of imprisonment as specified in the Misuse of Drugs Act 1977-1984, with the result that he was not eligible for consideration for temporary release under a statutory scheme as he had been convicted of certain specified offences under that Act (s. 15A offences) and the effect of s. 27 of the Act was that prisoners serving a minimum mandatory sentence for s. 15A offences do not qualify for temporary release until the expiration of the minimum mandatory period of their sentence. The applicant was released by virtue of his having qualified for enhanced remission under a different scheme. The respondents applied to the High Court to stay the proceedings on the basis that they were moot. The applicant said that the application should proceed for the benefit of other prisoners. The applicant said that because no minimum sentence was specified in his case (or for other s.15A sentences in excess of 10 years), there was no period during which the respondents were precluded from considering him for temporary release under s. 2 of the Criminal Justice Act 1960 and that, by wrongly interpreting the sentence as providing for a minimum period, the respondents had improperly fettered their statutory discretion. In the alternative he argued that, if s. 27(3) did preclude the respondents from considering the applicant for temporary release, it was repugnant to the Constitution.

Held by Kennedy J that there was a point of law of exceptional public importance which the court should determine in the interests of the due and proper administration of justice notwithstanding that the proceedings were moot. He held that confirming the eligibility issue and clarifying the rights of prisoners was desirable and there were special reasons in the public interest for hearing the action. He held that, as in Kovacs v Governor Mountjoy Women’s Prison [2016] IECA 108, the action could determine whether certain persons may be held in lawful custody and the point should be determined in the interests of the due and proper administration of justice. He did not consider it an exaggeration - particularly from the perspective of the potentially affected prisoners - to perceive the issue as a point of law of systemic importance to the operation of the prisons and the temporary release scheme, as far as the affected prisoners were concerned. He held that, as in DPP v Farrell [2014] IESC 30 and Kovacs, the decision potentially affected other criminal cases and had a systemic relevance to cases before the court; accordingly, it was in the interests of the due and proper administration of justice that the appeal be permitted to continue and that the issue against which the appellant appealed be heard and determined by the Court.

Kennedy J allowed the case to proceed and proposed dismissing the respondents' application.

Application refused.

APPEARANCES

Colman Fitzgerald SC, instructed by Broderick, Cahalane Moore Solicitors, for the Applicant.

Kathleen Leader SC, instructed by the Chief State Solicitor's Office, for the Respondents.

JUDGMENT of Mr Justice Liam Kennedy delivered 9 May 2025 .

1 . These proceedings concern the eligibility of certain prisoners for consideration for temporary release under a statutory scheme that, in certain circumstances, allows prisoners to be offered the opportunity of a phased and supervised reintegration into society subject to conditions and controls. The Respondents concluded — wrongly in the Applicant's view – that, he was serving a minimum mandatory period of imprisonment as specified in the Misuse of Drugs Act 1977–1984 (“the Act”), with the result that he was not eligible for consideration for such temporary release as he had been convicted of certain specified offences under that Act (s. 15A offences) and the effect of s. 27 of the Act was that prisoners serving a minimum mandatory sentence for s. 15A offences do not qualify for temporary release until the expiration of the minimum mandatory period of their sentence. Although these proceedings are well advanced, and independently of them, the Applicant has been released in the meantime by virtue of his having qualified for enhanced remission under an entirely different scheme. The Respondents accordingly seek to stay the proceedings on the basis that they are moot. The Applicant accepts that they are now moot but says that the application should proceed for the benefit of other prisoners who are or will be in the same situation as he was.

Background

2 . A high-level description of the context will suffice. The facts are largely common ground. When these proceedings were instituted, the applicant was a serving prisoner, having been sentenced on 8 December 2016 to multiple terms of imprisonment, including 12 years for two serious s.15A offences. The temporary release regime is governed by s. 27 of the Act and is in the following terms:

“(3A) Every person guilty of an offence under section 15A or 15B of this Act shall be liable, on conviction on indictment—

(a) to imprisonment for life or such shorter term as the court may determine, subject to subsections (3C) and (3D) of this section […] and

(b) at the court's discretion, to a fine of such amount as the court considers appropriate.

…

(3C) Where a person (other than a person under the age of 18 years) is convicted of an offence under section 15A or 15B of this Act, the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person.

(3D) (a) The purpose of this subsection is to provide that in view of the harm caused to society by drug trafficking, a court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under section 15A or 15B of this Act, shall specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of the offence, it would be unjust in all the circumstances to do so.

(b) Subsection (3C) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than 10 years imprisonment unjust in all the circumstances and for that purpose the court may, subject to this subsection, have regard to any matters it considers appropriate, including…

(3G) The power conferred by section 23 of the Criminal Justice Act 1951 to commute or remit a punishment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised before the expiry of the minimum term specified by the court under subsection (3C) […] of this section less any reduction of that term under subsection (3H) of this section.

(3H) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence imposed under subsection (3A) of this section and the minimum term specified by the court under subsection (3C) of this section shall be reduced by the amount of any remission so earned by the person.

(3I) Any powers conferred by rules made under section 2 of the Criminal Justice Act 1960 to release temporarily a person serving a sentence of imprisonment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised during the term for which the commutation or remission of his or her punishment is prohibited by subsection (3G) of this section unless for a grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by such reason.”

3 . Accordingly, the effect of the provision is that a recipient of a mandatory minimum sentence for a s.15A or s.15B offence cannot be granted temporary release until the expiration of the mandatory minimum period. In this case, the sentencing Court did not expressly impose a minimum sentence (nor apparently is it normal practice for the Court to specifically impose a minimum sentence for such offences), but the Respondents say that the Applicant's 12 year sentence for the two s.15A offences constitutes a minimum term for s.27 purposes and that he was therefore ineligible for consideration for temporary release until he had served at least 12 years imprisonment. He says:

There are weighty arguments on both side (as reflected by the grant of leave). This judgment does not address those substantive issues but rather whether the proceedings should continue notwithstanding their mootness.

• a. the Respondents' interpretation is wrong because s.27(2C) envisages that, when sentencing for s.15A offences, the court will specify a minimum period to be served in addition to imposing a sentence. It follows that s.27 only applies if the judge specifies a minimum sentence. That did not happen here. Accordingly, the s.27(3I) prohibition, preventing a person from being considered during the minimum period, has no application since no minimum sentence is stipulated. The interpretation issue is summarised by Walsh's ...