M v The Parole Board

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 01 October 2018
• Neutral Citation: [2018] IEHC 531
• Docket Number: 2017 No. 635 JR
• Court: High Court
• Date: 01 October 2018

[2018] IEHC 531

THE HIGH COURT

Barrett J.

2017 No. 635 JR

Between:

M

Applicant

– and –

THE PAROLE BOARD

– and –

THE MINISTER FOR JUSTICE AND EQUALITY

Respondents

Parole – Temporary release – Criminal Justice Act 1960 s. 2 – Applicant seeking an order of mandamus directing the first respondent to consider recommending the applicant for parole, remission or temporary release – Whether the second respondent acted capriciously, arbitrarily or in an unjust way

Facts: The applicant applied to the High Court seeking, inter alia: (i) an order of mandamus directing the first respondent, the Parole Board, to consider recommending the applicant for parole, remission or temporary release; (ii) an order of mandamus directing the second respondent, the Minister for Justice and Equality, to consider the applicant for temporary release pursuant to s. 2 of the Criminal Justice Act 1960 and/or to remit the applicant’s punishment pursuant to ss. 23 and 23A of the Criminal Justice Act 1951; (iii) an order of certiorari in respect of the decision of the Parole Board communicated to the applicant by letter of 3rd February, 2017, refusing to consider the applicant for parole while he was detained at the Central Mental Hospital; (iv) a declaration that the Minister should consider the applicant’s application for temporary release or remission of punishment in the same manner as a prisoner detained in prison.

Held by Barrett J that, having noted that the power of clemency has been allocated to the executive branch of government: (i) the granting of parole is in the nature of a privilege or concession vested in (and emanating from) the executive, (ii) the scope of any judicial review is, in consequence, necessarily constrained so that the judicial branch of government does not encroach unduly upon a power vested by the Constitution in the executive branch of government, and (iii) there is no right to parole that rests with a prisoner. Barrett J noted that the effect of (ii) is that a court (consistent with the judgment of Finlay CJ in Murray v Ireland [1991] ILRM 465) will only intervene where such clemency powers as have been bestowed upon the Minister, inter alia, pursuant to s. 2 of the 1960 Act, are exercised in a capricious, arbitrary or unjust way. Barrett J also noted the decision of the Supreme Court in Doherty v Governor of Portlaoise Prison [2002] 2 IR 252, the effect of which was that the court’s review powers are likewise constrained when it comes to the anterior issue of whether or not the Minister might be obliged to consider granting parole. Barrett J held that there was no evidence to the effect that the Minister in this case acted capriciously, arbitrarily or in an unjust way.

Barrett J held that all the reliefs sought would be refused.

Reliefs refused.

JUDGMENT of Mr Justice Max Barrett delivered on 1st October, 2018.

1 In 2007, Mr M pleaded guilty to murder and was sentenced to life imprisonment. While serving his life sentence Mr M was transferred to the Central Mental Hospital (CMH) pursuant to s.15 of the Criminal Law (Insanity) Act 2006 (‘ Transfer of prisoner to designated centre’). This was because, unfortunately, he was (and, it seems, is) suffering from a chronic mental disorder. (Section 15 and various other of the statutory provisions referred to in this judgment are quite lengthy; to make the judgment more coherent, the terms of those provisions are generally set out in the Appendix hereto). Mr M was transferred back to the prison system more than once following treatment at the CMH. However, his treatment regressed as, while in prison, he did not take his prescribed medication and even managed to gain access to illegal drugs. He was last transferred to the CMH in January 2012, a relatively long time ago, and has been detained there since that time pursuant to his life sentence and the related s.15 order. According to the papers before the court, Mr M last had his detention reviewed by the Mental Health (Criminal Law) Review Board on 22nd June, 2017.

2 The Review Board has the power to direct the transfer of a prisoner detained at the CMH back to the prison system but thus far has not considered Mr M's case to be one in which it is appropriate so to direct. In its review of June 2017 (which appears from the pleadings to be the most recent review), the Board recites the troubling details of Mr M's mental ill-health before concluding that he ‘ continues to suffer with a serious and chronic mental disorder which requires in-patient treatment and care in the [CMH]…which would not be available to him in prison. He would be very likely to be non-compliant with necessary medication and would be likely to avail of illicit drugs in prison, resulting in a rapid relapse in his mental health. Accordingly, the Board refuses to return him to prison’.

3 Given the length of time that he has now spent in custody, in a letter of 3rd February 2017, Mr M placed a personal query with the Parole Board as to whether and when he would be considered for parole. (The Parole Board is a non-statutory departmental body which advises the Minister in the context of parole applications and eligibility and makes recommendations which the Minister may or may not accept). By letter of 7th February, 2017, the Parole Board responded to indicate that ‘ as you are currently a patient in the Central Mental Hospital the Board is unable to review your case at this time’. By July 2017, Mr M had obtained legal representation and his solicitors raised Mr M's case with the Minister for Justice. An official at the Department responded to that query in the following terms, in a letter of 21st July, 2017:

‘Dear Sir/Madam

I am directed by the Minister for Justice and Equality, Charles Flanagan TD, to refer to your correspondence dated 5th July, 2017, regarding your client…and his request to be considered for a Parole Board review of his sentence.

The Parole Board is a non-statutory advisory body. It advises the Minister for Justice & Equality in relation to the administration of long term prison sentences in cases which the Minister refers to it for review. The Board's main role is to make recommendations to the Minister on the management of such sentences. This may involve a recommendation for release or steps the prisoner should follow so that they are given the opportunity to address their offending behaviour and rehabilitate themselves. The Board advise the Minister of progress made to date, the degree to which there has been engagement with the various therapeutic services such as the Probation & Psychology Services and how best to proceed with the future management and administration of that sentence.

The Mental Health (Criminal Law) Review Board's main function is to review the detention of those found not guilty by reason of insanity or unfit to be tried, who have been detained in a designated centre by order of a court. The Review Board also has responsibility for people [such as Mr M] who have been convicted of offences and who are subsequently deemed to be suffering from a mental illness while serving their sentences. The Review Board must have regard to the welfare and safety of the person whose detention it reviews and to the public interest. The Board is obliged to review each detention at least once every 6 months.

The powers of the Mental Health Review Board are set out in the Criminal Law (Insanity) Act 2006 and they include the review of the detention of such persons in designated centres. Temporary release and transfers are also matters for the Review Board in conjunction with the Minister for Justice & Equality.

Section 18 of the same Act [‘Transfer back to prison’] provides:

“Where the Clinical Director of a designated centre forms the opinion in relation to a prisoner detained in the centre pursuant to Section 15 that he or she is no longer in need of in-patient care or treatment, he or she shall, after consultation with the Minister, direct in writing –

(a) the transfer of the prisoner back to the prison from which he or she was transferred to the centre, or

(b) the transfer of the prisoner to such other prison as the Minister considers appropriate in all the circumstances of the case.”

If any prisoner is transferred back to a prison, that person can be referred by the Irish Prison Service after consultation with the in-reach psychiatric service, to the Minister for a review of their case by the Parole Board, as their detention will no longer [be] subject to review by the Mental Health (Criminal Law) Review Board. The Minister will then consider whether that case is to be referred to the Parole Board for review.

The Parole Board has no role in reviewing the detention of patients transferred from a prison to a designated centre such as the Central Mental Hospital (CMH). Those powers are set out in statute and do not provide a role for the Parole Board. Where a prisoner is in the long term care of the CMH, the Parole Board is plainly not in a position to advise the Minister, as it would in the case of a person in the custody of the prison system. It could not, for example, advise the Minister of the person's progress to date, the degree to which there has been engagement with the various therapeutic services such as the Probation & Psychology Service, how that person has addressed their offending behaviour and how best to proceed with the future management and administration of that sentence.

Put simply, the Parole Board could not advise the Minister on the sentence management of a person under treatment in the CMH. In such circumstances, it would not be in the public interest for the Minister to make a decision until such time as the prisoner has stabilised, returns to prison from the CMH and engages with the relevant services in prison to address his offending behaviour. The Minister cannot refer your client's case to the Parole Board for...