Kinahan -v- The Minister for Jstice, Equality & Law Reform & ors., [2001] IESC 16 (2001)

Docket Number:345/00
Party Name:Kinahan, The Minister for Jstice, Equality & Law Reform & ors.
Judge:Geoghegan J.
 
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THE SUPREME COURTHardiman J. No. 345/00

Geoghegan J.

Fennelly J.

JUDICIAL REVIEW

Between:

CHRISTOPHER KINAHAN

Applicant

and

THE MINISTER FOR JUSTICE EQUALITY

AND LAW REFORM,

THE ATTORNEY GENERAL, THE GOVERNOR OF

PORTLAOISE PRISON and IRELAND

Respondents

JUDGMENT of Hardiman J. delivered the 21st day of February, 2001.

Background.

The Applicant is serving a four year sentence for receiving stolen cheques. He was initially committed to Mountjoy prison on the 4th March, 1998. He was transferred to Portlaoise Prison on the 4th March, 1999 and to the Training Unit in Glengarriff Parade on the 6th July, 2000. He is due for release on the 8th March, 2001, less than a month hence. He has a number of previous convictions including one for possession of drugs with intent to supply, for which he received a six year sentence. According to his own correspondence exhibited in this case he has spent eleven of the last fifteen years in jail.

The Applicant made a number of applications for temporary release from prison. One of these, in November, 2000, was successful and he has a further application pending. However, the present proceedings relate to an earlier application which he made on the 27th March, 2000 and which was refused by letter dated the 26th May, 2000.

While the Applicant sought a variety of reliefs in his original proceedings, on the hearing of this appeal the relief sought was confined to an Order quashing the refusal evidenced by the letter of 26th May, 2000. This relief was sought on the basis that the notification of the decision to refuse temporary release did not contain adequate reasons for such refusal; further or in the alternative that the reasons actually given suggested that the decision had been come to in an irrational or unreasonable fashion; that the criteria set out in that letter for the granting of temporary relief were themselves inadequate and inconsistent with modern penal policy including policies to which the State, through the Council of Europe, has adhered; and that the criteria were being applied in a discriminatory fashion.

Temporary release.

In the course of this hearing there was some debate about the nature of temporary release. It does not appear to me that temporary release is a specific exercise of the general power of commutation or remission envisaged in the Constitution. Rather, it appears to be a statutory creation administered under the Prisoners (Temporary Release) Rules 1960 (SI 167 of 1960), which instrument was in turn made under the powers conferred by the Criminal Justice Act, 1960.

Rule 3 of the Instrument provides as follows:-

"The Governor or other officer in charge for the time being of a prison may, subject to the directions of the Minister and subject to any exceptions which may be specified in directions of the Minister, release temporarily for a specified period a person serving a sentence of penal servitude or imprisonment in that prison".

In fact, Mr. Kinahan directed his application for temporary release in the first place to an official in the Department of Justice and secondly, to the Minister personally. In light of this I do not think it is open to the Applicant to take a point of the sort that was...

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