Kendall v The Minister for Justice and Equality

JudgeMr. Justice McCarthy
Judgment Date16 January 2019
Neutral Citation[2019] IECA 21
CourtCourt of Appeal (Ireland)
Docket Number[2018/122]
Date16 January 2019

[2019] IECA 21


McCarthy J.

Birmingham P.

Edwards J.

McCarthy J.


- AND -

Discovery – Privilege – Judicial review – Appellant seeking discovery of documents – Whether the appellant was entitled to the document as of right

Facts: The appellant, Mr Kendall, appealed to the Court of Appeal against the refusal by the High Court (Coffey J), on the 13th of March 2018, of an interlocutory application seeking discovery of documents in support of the appellant’s application for certain relief by way of judicial review. In his written submissions the appellant said that the issues on this appeal were as follows: 1) whether or not the appellant was entitled to the document as of right; 2) whether or not the High Court applied the correct test in determining if discovery was relevant and necessary; 3) whether or not the respondent, the Minister for Justice and Equality, could rely on public interest privilege to resist discovery; and 4) whether public interest privilege had been properly asserted. The applicant further maintained that the High Court misconstrued the nature of the decision made by the respondent and was in error in confining the role of judicial review to a narrow spectrum. It was said that this error had consequential implications for the High Court’s view as to the necessity for discovery.

Held by McCarthy J that a question of privilege could only arise in the event of discovery being ordered, and inspection sought; a hypothetical claim of privilege was not, accordingly, a matter which could or should be addressed on this appeal. McCarthy J held that even if the report was not available as of right, discovery and hence access to the document, subject to any claim of privilege, was possible in a proper case. McCarthy J was therefore satisfied that the High Court judge did not err in principle in the manner claimed. McCarthy J held that the judge could not find anything on the evidence in this case to suggest that the Minister’s reliance on the Garda view was “arbitrary, capricious or unjust” and hence there was no basis for intervention.

McCarthy J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT delivered on the 16th day of January 2019 by Mr. Justice McCarthy .

This is an appeal against the refusal by the High Court (Coffey J), on the 13th of March 2018, of an interlocutory application seeking discovery of documents in support of the appellant's application for certain relief by way of judicial review in the proceedings herein.

Background to the judicial review proceedings

The applicant pleaded guilty before the Special Criminal Court to certain offences involving the possession of explosives and a firearm and ammunition and ultimately, on appeal to this Court, was sentenced to imprisonment for a period of twelve years initially, although this was reduced to ten years on appeal. The last twenty one months of the sentence was to be suspended for a period of four years following the appellant's release on terms, inter alia, that the appellant should commit himself by way of an undertaking to the court to disassociate from dissident republicanism and that he would not associate with or put himself in the company of any person who had been convicted of an offence by the Special Criminal Court, and in particular that he would not associate or put himself in the company of a named individual.


On an unspecified date in November 2016, the appellant made an application to the respondent (the Minister for Justice and Equality) for temporary release under what is called ‘the Community Return Programme’.


The respondent is invested with power under the provisions of s. 2 of the Criminal Justice Act 1960 (‘the Act of 1960) as inserted by s.1 of the Criminal Justice (Temporary Release of Prisoners) Act 2003 to grant such release. By the provisions of s. 2(2) of the Act of 1960 the respondent, in directing release, must have regard, inter alia, to any report or recommendation made by An Garda Síochána. The application by the appellant was refused by the respondent and, on the 13th of January 2017, Mr Paul Mannering, an official in the Operations Directorate of the Irish Prisons Service, when communicating that refusal in an e-mail to the appellant's solicitor, on behalf of the respondent, stated inter alia that-

‘The decision reached is that it is not appropriate at this time to grant early release. In reaching this decision, information received from An Garda Síochána, the nature and gravity of the offence and the risk of the person committing an offence during any period of temporary release are the main factors which have been considered.’


Subsequently, the appellant made a second application for temporary release, supported by representations made on his behalf by his solicitor. On either the 20th or the 23rd of February 2017 (there is some lack of clarity as to the exact date, but nothing turns on it,) the appellant's second application was also refused. Prior to that refusal, Mr Mannering, in a letter dated the 14th of February 2017 to the appellant's solicitor, having set out in extenso the matters which the Minister was required to consider, stated that :-

‘Having considered all of the above, the main reasons why your client has been refused temporary release is information received from An Garda Síochána, the nature and gravity of the offence and the risk of the person committing an offence during any period of temporary release. I can also confirm that material received from yourselves, your client and the Probation Service was also considered when the decision was being made’


Notwithstanding the fact that the appellant was due for release on the 17th April 2017 (having earned remission of sentence in the ordinary way to the extent of one quarter thereof) he commenced these proceedings on the 10th March 2017, grounded on a Statement of Grounds and the affidavit of Ms Shalom Binchy, his solicitor. An amended Statement of Grounds was delivered on the 5th March 2018. The appellant's proceedings claim certiorari in respect of both the decisions of the 13th January 2017 and the 23rd February 2017, respectively. Moreover, by the amended Statement of Grounds an order of mandamus and an associated declaration are also sought to compel the respondent to give ‘proper and adequate reasons’ for his decisions.

The motion for discovery

The motion the subject matter of the present appeal seeks:

‘The document or record or garda report in the possession of the Minister for Justice/Irish Prison Service setting out “information received from An Garda Síochána” as referred to in the email from Paul Mannering of the 13th January, 2017 and further referred to in the letter from Paul Mannering of the 14th February, 2017 as follows: “the information from An Garda Síochána which was considered in relation to the application. Such reports are compiled and submitted …” and the date and author saying.’

Background to the application for temporary release.

The appellant has acknowledged in his affidavit dated the 21st of March 2017 that the offences of which he was convicted, and to which he pleaded guilty, were of a serious nature. The appellant says he has made efforts towards rehabilitation while in prison, including partaking in educational classes, training, and work. The appellant further stated in his affidavit that the conditions in the basement area of Portlaoise Prison where he was incarcerated following his request to leave the republican landing were poor. The appellant says he was prevented from continuing to engage with educational and other services such as construction studies and home economics as they were held in the same area as prisoners whom he has wilfully disassociated himself with. This in turn made the appellant isolated, with little mental or social stimulation.


He made an application for enhanced remission in November 2015 but it was not dealt with quickly. On the 1st of June 2016, he was transferred to Castlerea Prison where the level of security is lower than that in Portlaoise. The appellant says he remained motivated to continue engaging with educational classes and training as an electrician. In order to complete his training, he asserted he required some form of enhanced remission or temporary release under the Community Return Scheme. On the appellant's instructions Ms Binchy wrote a letter seeking a response from the Irish Prison Service in relation to the application for enhanced remission. By letter dated the 16th of August 2016, the application was refused. That letter stated, inter alia:

‘Whilst it is acknowledged that you have engaged in some authorised structured activity, attending school and completing various computer course, the Minister having regard to the nature and gravity of your offences, the lack of offence focused rehabilitative work and the potential threat to the safety and security of members of the public is not satisfied that you are less likely to reoffend and are better able to reintegrate into the community.’


The appellant stated that he was the only ‘Portlaoise Prisoner’ in the late stage of a sentence who was not granted any form of pre-release by the respondent.


He met with an official from the Irish Prison Service, the aforementioned Mr Mannering, in November 2016. He explained to Mr Mannering that he had been making efforts to improve himself and that he had put his past behind him. Following this, the appellant made his first application for temporary release under the Community Return Scheme, and which, as has been stated, was refused. Thereafter, the appellant made his second application for temporary release and/or remission, to apply from the 3rd of April 2017, in order to facilitate his attendance on a...

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