M. v The Parole Board

JurisdictionIreland
JudgeMs. Justice Iseult O'Malley
Judgment Date12 May 2020
Neutral Citation[2020] IESC 24
CourtSupreme Court
Docket Number[Supreme Court Appeal No: 180/2018]
Date12 May 2020
BETWEEN:
M.
Appellant
AND
THE PAROLE BOARD

AND

THE MINISTER FOR JUSTICE & EQUALITY
Respondents

[2020] IESC 24

Clarke C.J.

MacMenamin J.

Dunne J.

O'Malley J.

Irvine J.

[Supreme Court Appeal No: 180/2018]

THE SUPREME COURT

Conditional release – Prisoner – Criminal Justice Act 1960 s. 2 – Appellant seeking conditional release – Whether the appellant could be considered for release under s. 2 of the Criminal Justice Act 1960

Facts: The appellant pleaded guilty to murder in 2007 and was sentenced to life imprisonment, backdated to May 2006. During the first few years of his sentence he was transferred several times from prison to the Central Mental Hospital (the CMH), under the provisions of the Criminal Law (Insanity) Act 2006, for treatment for schizophrenia. It appeared that his condition regressed each time he was transferred back to prison, with the indications being that he did not comply with his medication regime and used illicit substances. His last transfer to the CMH was in January 2012 and he was detained there. As required by the Act he had been reviewed twice a year by the Mental Health (Criminal Law) Review Board. Each review since 2012 had concluded that he required in-patient treatment in the CMH and should not be transferred back to prison. In 2017 the appellant applied to the first respondent, the Parole Board, for an assessment for parole. The Board took the view that it could not consider his application while he was detained in the CMH. For the same reason, the second respondent, the Minister for Justice and Equality, said that he could not consider an application for temporary release. On the 31st July 2017 the appellant was granted leave to seek an order of certiorari quashing the refusal of the Parole Board to consider him for parole, orders of mandamus directing the Parole Board to consider recommending him for parole, remission or temporary release, and directing the Minister to consider him for temporary release under the Criminal Justice Act 1960 and/or remission under the Criminal Justice Act 1951, and a declaration that the respondents should consider his application for temporary release or remission of punishment in the same manner as a prisoner detained in a prison. The appellant’s claim was rejected in the High Court ([2018] IEHC 531). The appellant appealed to the Supreme Court. The principal dispute between the parties related to s. 2 of the 1960 Act. The appellant said that he could be considered for release under its terms. The Minister said that he could not, because he was not in prison and therefore could not be released from prison. Further, the Minister said that the Parole Board could not assess the case of a person in the appellant’s position.

Held by O'Malley J that s. 2 of the 1960 Act was never, whether before or after the amendment in 2003, intended to apply to prisoners transferred to the CMH. O’Malley J held that the CMH is not a prison, nor a place provided under s. 2 of the Prisons Act 1970, nor a place specified under s. 3 of the Prisons Act 1972. O’Malley J held that the section that was expressly intended to apply to the CMH is s. 3. It appeared to O’Malley J that s. 3 is operable only in the case of any person who was transferred from prison to the CMH on foot of a Ministerial order made before the 2006 Act came into force, and who has remained in detention there since. However, O’Malley J held that this limitation on s. 3 would not be a proper basis for reading into s. 2 a power that clearly was not intended by the legislature in 1960.

O'Malley J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice Iseult O'Malley delivered on the 12th of May 2020.
Introduction
1

The issue in this appeal is whether a long-term prisoner who has been transferred to the Central Mental Hospital (“the CMH”), on foot of a diagnosis of mental illness, is entitled to be considered for conditional release.

2

The appellant pleaded guilty to murder in 2007 and was sentenced to life imprisonment, backdated to May 2006. During the first few years of his sentence he was transferred several times from prison to the CMH, under the provisions of the Criminal Law (Insanity) Act 2006, for treatment for schizophrenia. It appears that his condition regressed each time he was transferred back to prison, with the indications being that he did not comply with his medication regime and used illicit substances. His last transfer to the CMH was in January 2012 and he has been detained there since. As required by the Act he has been reviewed twice a year by the Mental Health (Criminal Law) Review Board. Each review since 2012 has concluded that he required in-patient treatment in the CMH and should not be transferred back to prison.

3

In 2017 the appellant applied to the first named respondent, the Parole Board, for an assessment for parole. The Board took the view that it could not consider his application while he was detained in the CMH. For the same reason, the second named respondent, the Minister, says that he cannot consider an application for temporary release.

4

It is accepted on behalf of the appellant that should he be released, he might be detained in a psychiatric facility under the provisions of the Mental Health Act 2001 as amended. However, he sees this as preferable to what he sees as the prospect of serving a full life term in the CMH.

5

The debate between the parties has focussed closely on the many and various legislative provisions relevant to the appellant's situation, and it may be helpful to consider these before setting out the arguments.

Temporary release from prison
6

Section 2 of the Criminal Justice Act 1960, in its original form, simply empowered the Minister to make rules providing for the temporary release of persons serving a sentence of penal servitude or imprisonment, or a sentence of detention in St. Patrick's Institution (a penal institution for young male offenders, now closed). The section was amended by several enactments, mostly for the purpose of restricting its application to various categories of prisoner by reference to their conviction for particular offences, or providing for particular conditions to be attached to a grant of temporary release. Rules have been made by various statutory instruments that prescribe the applicable forms and deal with particular prisons and their governors. No express provision appears to have been made at any stage for prisoners transferred to the CMH on mental health grounds.

7

Section 2 was replaced, by s.1 of the Criminal Justice (Temporary Release of Prisoners) Act 2003, (as amended by s.8 of the Prisons Act 2015) with a more comprehensive provision that enables the Minister to direct the temporary release “from prison” of a person “serving a sentence of imprisonment”, where a reference to a person serving a sentence of imprisonment includes “a person being detained in a place provided under section 2 of the Prisons Act 1970”. Section 2 of the Prisons Act 1970 provides that the Minister may, for the purpose of promoting the rehabilitation of offenders, provide places other than prisons for the detention of persons who have been sentenced to imprisonment.

8

The word “prison” is not defined in the Act of 1960. However, s.2 of the Prisons Act 2007, as amended, defines a prison as a place of custody administered by or on behalf of the Minister for Justice and Equality, other than a Garda Síochána station. For the purposes of that Act it includes a place provided under s.2 of the Act of 1970. One example of such a place was the “open” prison in Shanganagh Castle (now closed). It also includes a place provided under s.3 of the Prisons Act 1972, which enables the Minister to specify a place to be used as a prison. This power was, for example, exercised in 2001 to specify that Wheatfield Place of Detention should be used as a prison. The Prisons Acts, and any other enactments relating to prisons, apply to persons detained in a place provided under s.2, and such persons are deemed to serving sentences of imprisonment in such places (s.4 of the Prisons Act 1970).

9

9. Temporary release under s.2 as amended may be granted for the purpose of assessing or preparing the person for release; or to enable him or her assist in a Garda investigation; or on health or other humanitarian grounds; or for prison governance reasons; or if the Minister is of the opinion that the person has been rehabilitated and would be capable of reintegrating into society. In making a decision whether or not to grant temporary release the Minister must have regard to a number of considerations set out in the section including the nature and gravity of the offence, the conduct of the person concerned and any report or recommendation from the governor of the prison concerned.

10

If the Minister grants temporary release, a direction to that effect is to be given to the governor of the prison concerned, and the governor shall comply with that direction.

11

Separately, s.39 of the Prisons Act 2007 provides that the Minister may, on compassionate grounds, or for the purpose of assessing suitability for early release, or to enable assistance in the investigation of an offence, order that a prisoner be taken to a specified place, for a specified purpose, for a specified period of time. This appears to enable shorter, escorted absences from prison.

Temporary release from the CMH
12

Section 1 of the Criminal Justice Act 1960 defines the Central Mental Hospital as the Central Criminal Lunatic Asylum established under the Central Criminal Lunatic Asylum (Ireland) Act 1845.

13

Section 3 of the 1960 Act, as amended, empowers the person in charge of the Central Mental Hospital (now referred to as the clinical director) to temporarily release a “criminal lunatic” detained there, with the consent of the Minister, if satisfied that the person is not...

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2 cases
  • Price v Governor of Wheatfield Prison
    • Ireland
    • Court of Appeal (Ireland)
    • 8 December 2020
    ...Delegation of Powers) Order 1998 (S.I. No. 416 of 1998). This framework was recently reiterated by O'Malley J. in M. v. The Parole Board [2020] IESC 24 at para. 31 The provisions of the 1907 Act in regard to remission continued in operation until the introduction of the Rules for the Govern......
  • M v The Parole Board
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    • Supreme Court
    • 30 June 2020
    ...claim for orders by way of judicial review against the respondents, the Parole Board and the Minister for Justice and Equality ([2020] IESC 24). The Court held that the Minister did not have jurisdiction under s. 2 of the Criminal Justice Act 1960 to grant parole to a prisoner who was detai......

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