Kelly v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 23 November 2017 |
| Neutral Citation | [2017] IEHC 805 |
| Docket Number | [2017 No. 686 J.R.] |
| Court | High Court |
| Date | 23 November 2017 |
[2017] IEHC 805
THE HIGH COURT
JUDICIAL REVIEW
Faherty J.
[2017 No. 686 J.R.]
Crime & Sentencing - Practice & Procedure - Refusal to grant enhanced remission - Certiorari - R.59(1) of the Prison Rules 2007 - Breach of fair procedures - Safety to life - Temporary release
Facts: The applicant sought an order of certiorari, by way of judicial review, of two decisions of the respondent refusing him temporary release and enhanced remission respectively. The applicant contended that it was an unfair decision to cancel the applicant's temporary release, based on adverse media reports. The respondent argued that the basis of its decision was the identification of a potential threat to the safety of the applicant as a member of the public while he was on temporary release.
Ms. Justice Faherty refused to grant the desired relief to the applicant. The Court held that there was enough evidence to establish that the respondent was not satisfied that the enhanced remission application had met the requirements of r.59(2)(d) of the Prison Rules 2007. The Court noted that the respondent's decision was reasonable and cogent. The Court observed that the respondent was obliged to ensure the safety and security of the prisoners including the applicant.
In this case, the applicant seeks, inter alia, certiorari by way of judicial review, of two decisions of the respondent refusing him temporary release and enhanced remission respectively.
The relevant background is as follows.
The applicant was sentenced by Donegal Circuit Criminal Court on 18th December, 2014 to a sentence of four years imprisonment with the final two years suspended in respect of a charge of dangerous driving causing death. The offence was committed in July, 2010 when the applicant was 21 years of age. It involved the death of eight people, including seven friends of the applicant who were passengers in the car driven by him.
The Director of Public Prosecutions appealed against the leniency of the sentence. In a judgment delivered on 16th November, 2015, the Court of Appeal found that the sentence imposed by the Circuit Court was the result of an error of principle by the learned sentencing judge and it set aside the said sentence as being unduly lenient.
In a further judgment delivered on 7th December, 2015, the Court of Appeal substituted a sentence of eight years imprisonment with final four years suspended to date from the date that the applicant went into custody.
The applicant's release date, based on the calculation of a remission rate of one quarter, in accordance with Rule 59(1) of the Prison Rules 2007 to 2014 (S.I. No. 252 of 2007 and S.I. No. 385 of 2014) ('the Prison Rules') is the 16th December, 2017. The applicant's release date, based on the calculation of a remission of one third, in accordance with Rule 59(2) of the Prison Rules was between 16th and 18th August, 2017.
For the most part, the applicant has served his sentence in Castlerea Prison and latterly, since 10th August, 2016, in Loughan House Open Centre Prison.
On 9th February, 2017, in light of positive reports on the applicant's sentence progression, and given that he is due to be released on 16th December, 2017, he was approved by for temporary release on a trial basis commencing February, 2017. If it went well, it was suggested that the applicant could avail of one temporary release period per month, with curfew, for March and April 2017, and, thereafter, temporary release to be reviewed after the April 2017 review meeting.
On foot of this, the applicant was granted overnight temporary release on the 17th February, 2017 until 19th February, 2017, whereby he was permitted to return home to his family in Donegal. While on temporary release he was photographed on his family farm and subsequently, on 20th February, 2017, when the applicant had returned to Loughan House Open Centre Prison, a series of very prominent newspaper articles appeared in the national press expressing highly critical views on the fact that he had been permitted temporary release.
On 20th February, 2017, an internal Irish Prison Service (IPS) email referred to this press coverage. Attached to the email was a 'Media Book' which comprised extracts from the highly critical media coverage which the applicant's temporary release had generated.
On 22nd February, 2017, the Governor of Loughan House Open Centre Prison was advised that the Director of Operations of the IPS had instructed that the applicant's programme for future temporary release be cancelled and that he remain within the confines of Loughan House property/grounds for his own safety and protection. On 3rd March, 2017, the IPS sought a list of any prisoners in Loughan House Open Centre who were serving sentences for dangerous driving causing death.
By early March, 2017, the applicant was aware that he would not be availing of any further temporary release. An internal IPS email of 9th March, 2017, gives an account of a meeting between prison personnel and the applicant's parents who conveyed their annoyance that the applicant's temporary release programme had been revoked. They are recorded as asking whether the IPS was being dictated to by the media. The email states that it was explained to the applicant's parents that while there had been unprecedented media attention, temporary release was not a right and the granting of it was based on a number of factors including the nature and gravity of the offence. They were also advised that temporary release once approved could also be revoked.
Notwithstanding the decision taken on 22nd February, 2017, it would appear however that in April, 2017, further to the applicant's request, the IPS explored whether temporary release might be exercised at locations other than the applicant's family home in Donegal but it was explained to the applicant that this consideration 'was not an indication of approval of TR'.
On 5th April, 2017, the applicant applied for consideration for enhanced remission pursuant to Rule 59(2) of the Prison Rules.
On 3rd July, 2017, the applicant's mother wrote to Ms. Rita McGahern, Principal Officer in the Operations Directorate of the IPS, with regard to the cancellation of the temporary release programme which had been envisaged in February, 2017 for the applicant. She requested that the 'home visits' would be reinstated.
That letter was replied to by McGahern on 6th July, 2017 in the following terms:
'I wish to acknowledge receipt of your correspondence of 03 July, 2017. Please be assured that consideration has been given to the management of the custodial sentence imposed by the courts in respect of your son ... He was deemed suitable for transfer from a closed prison to an open centre having served 17 months of a four year sentence, leading to his transfer from Castlerea Prison to Loughan House Open Centre regime on 10th August, 2016. In early 2017, he was approved a trial of two over nights temporary release (TR) from 17th to 19th February, 2017, as part of his reintegration into the community. However this led to unprecedented media attention all of which was negative and focussed on the loss of life. In light of these events the Director of Operations instructed that the programme for future TR be cancelled and that Mr. Kelly remain within the confines of the Loughan House property for his own safety and protection. The Irish Prison Service are obliged to ensure the safe and secure custody of all prisoners for the duration of their sentence, and it is with this in mind that the Directors (sic) decision remains unchanged.'
It is the applicant's contention, in the within proceedings, that this letter constituted a separate and distinct decision refusing temporary release to the applicant, to that which was made on 22nd February, 2017. The respondent contends that the letter of 6th July, 2017 merely confirmed the decision made on 22nd February, 2017.
On 17th August, 2017, the applicant was advised that his application for enhanced remission was refused. The contents of this decision letter are set out more particularly later in the judgment.
By Order of this Court of 25th August, 2017, (Faherty J.) the applicant was granted leave to seek, inter alia:
(i) an order of certiorari, by way of an application for judicial review, quashing the decision of the respondent to refuse the applicant enhanced remission;
(ii) an order of certiorari, by way of an application for judicial review, quashing the decision of the respondent to revoke the applicant's temporary release which decision was made in or around February, 2017 and subsequently affirmed and explained by letter dated 6th July, 2017; and
(iii) an order of certiorari, by way of an application for judicial review, quashing the ongoing decision of the respondent, as evidenced in the letter of 6th July, 2017, to refuse the applicant temporary release indefinitely, for the duration of his sentence.
In summary, the decision not to grant the applicant temporary release is challenged on the following grounds:
(i) There is nothing in the relevant legislation relating to temporary release to permit the respondent to take into consideration media reports relating to a person who has been granted temporary release;
(ii) There is nothing in the relevant legislation which permits the respondent to take into consideration the safety and protection of a person in the position of the applicant who was granted temporary release;
(iii) None of the media articles upon which the IPS relied indicated any danger to the safety or protection of the applicant by reason...
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