Kinahan v Minister for Justice

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 21 February 2001
• Neutral Citation: [2001] IESC 16
• Court: Supreme Court
• Docket Number: [S.C.
• Date: 21 February 2001

[2001] IESC 16

THE SUPREME COURT

Hardiman J.

Geoghegan J.

Fennelly J.

No. 345/00

KINAHAN v. MINISTER FOR JUSTICE & ORS

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

Citations

PRISONERS (TEMPORARY RELEASE) RULES 1960 SI 167/1960 RULE 3

CRIMINAL JUSTICE ACT 1960

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

MURRAY V AG 1991 ILRM 465

DPP V TIERNAN 1989 ILRM 149

Synopsis:

Prisons

Prisons; application for temporary release; separation of powers; applicant seeks order quashing refusal to grant temporary release; whether notification of decision to refuse temporary release contained adequate reasons for such refusal; whether it had been established that powers of executive in this matter had been exercised in a capricious , arbitrary or unjust way; whether criteria for granting temporary relief indicated by respondent deficient and, in particular, incompatible with Council of Europe recommendation on such matters; whether criteria had been applied in a discriminatory fashion; whether there is a presumption in favour of an applicant for temporary release being released; r. 3, Prisoners (Temporary Release) Rules, 1960; R(87)3, Committee of Ministers, Council of Europe.

Held: Appeal dismissed; order of High Court affirmed; no presumption in favour of applicant for temporary release being released.

Kinahan v. Min for Justice - Supreme Court: Hardiman J., Geoghegan J., Fennelly. - 21/02/2001 - [2001] 4 IR 454

The applicant sought to challenge the decision of the respondents regarding a refusal of temporary release while serving a prison sentence. The applicant's proceedings were dismissed in the High Court. On appeal, Hardiman J, delivering judgment, held that there was no evidence of any discriminatory criteria having been applied and dismissed the appeal.

1 JUDGMENT of Hardiman J. delivered the 21st day of February, 2001. [nem diss]

Background.

2 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.

3 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.

4 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.

5 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.

6 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".

7 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 briefly canvassed in argument, to the effect that the Minister had usurped the Governor's functions in the matter. In any event, the decision was communicated to the Governor as well as to the Applicant and if necessary I would be prepared to hold that the letter of the 26th May constituted a direction within the meaning of Regulation 3.

8 It is clear from the above-mentioned Statute and Regulations that temporary release is envisaged as a release from custody for a limited period during the currency of a sentence, subject to conditions and carrying an obligation to return to the prison at its conclusion. In this it seems quite distinct from the general executive power of remission.

The submissions.

9 On behalf of the Applicant it was submitted that the letter of the 26th May communicated no, or alternatively no adequate, reason for the refusal of temporary release. It was submitted that, in particular by reason of certain recommendations of the Committee of Ministers of the Council of Europe, to which Ireland was party, there is a presumption in favour of an Applicant for temporary release being released. The relevant recommendation is a recommendation R(87)3. These recommendations, it was submitted, were inadequately reflected in the six criteria, which according to the letter of the 26th May, 2000, applied to applications for temporary release. It was contended that any rational application of proper criteria could only lead to the release of the Applicant. In any event no coherent reason for refusing the application appears on the face of the letter.

10 For the Respondent, it was contended that there was a very wide discretion as to how to deal with applications for temporary release, which was a privilege granted in an executive manner by the Minister or Governor. There was no need for a refusal to be justified by specific reasons and in some cases it could be dangerous or unwise to do so. The Respondents did not, in the end, contend that a decision to refuse temporary release could never be the subject of review (though there was some authority cited for this proposition). It was however submitted that a decision of this sort could...