McAlister v Minister for Justice

JurisdictionIreland
JudgeMr. Justice Finnegan
Judgment Date11 April 2002
Neutral Citation2002 WJSC-HC 4759
CourtHigh Court
Docket Number[2001 No. 24 J.R.]
Date11 April 2002

2002 WJSC-HC 4759

THE HIGH COURT

RECORD NO. J.R.24/2001
McALISTER v. MINISTER FOR JUSTICE
JUDICIAL REVIEW

BETWEEN

DANNY McALISTER
APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAWREFORM
RESPONDENT

Citations:

CRIMINAL JUSTICE ACT 1960 S2

CONSTITUTION ART 40

EUROPEAN PRISON RULES R43(2)

EUROPEAN PRISON RULES PART IV

EUROPEAN PRISON RULES R70(2)

FIREARMS ACT 1964 S27

LARCENY ACT 1916 S23

CRIMINAL JUSTICE ACT 1960 S2(1)

CORISH V MIN FOR JUSTICE & ORS 2000 2 IR 548

CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD & ORS V MIN FOR TRANSPORT & ORS 1997 ILRM 241

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

DALY, R V HOME SECRETARY 2001 2 WLR 1622

Z V MIN FOR JUSTICE & ORS UNREP SUPREME 1.3.2002

KINAHAN V MIN FOR JUSTICE & ORS UNREP SUPREME 21.2.2001

CONSTITUTION ART 29.6

TARA PROSPECTING LTD V MIN FOR ENERGY 1993 ILRM 771

WRAITH & HUTCHESSON ADMINISTRATIVE TRIBUNALS 1973ED 150

WESTMINISTER BANK LTD V BEVERLEY BOROUGH CO 1969 1 QB 499

BREEN V AMALGAMATED ENGINEERING UNION 1971 2 QB 175

LYNCH V MIN FOR JUSTICE UNREP HERBERT 26.3.2001

P & L & B V MIN FOR JUSTICE & AG 2002 1 ILRM 38

RUSSELL V DUKE OF NORFOLK 1949 1 AER 109

RYAN V GOV OF LIMERICK PRISON & ANOR 1988 IR 198

Synopsis:

JUDICIAL REVIEW

Temporary Release

Compassionate leave - Reasons - Discovery - Ultra Vires - Constitution - Legitimate expectation - European Prison Rules -Whether an applicant for compassionate temporary release is entitled to be furnished with the reasons for a refusal of such application - Criminal Justice Act, 1960 section 2 (2001/24JR - Finnegan P - 11/4/2002)

McAlister v Minister for Justice, Equality and Law Reform - [2003] 3 IR 35 - [2003] 1 ILRM 161

Facts: The applicant is serving an eight year prison sentence having been convicted of possession of firearms, possession of ammunition and assault with intent to rob. In July 2000 the applicant requested compassionate temporary release in order to visit his elderly mother who was in poor health. By letter dated 18th July 2000 the applicant was informed that his request had been refused. On 22nd July 2000 the applicant made a further application which in turn was refused and the applicant was notified of this refusal by letter dated 26th October, 2000. Prior to the receipt of this letter the applicant requested the criteria used by the respondent in considering his unsuccessful application for temporary release. That correspondence elicited the reply of 26th October 2000 which set out the criteria the respondent takes into account. In further correspondence the applicant sought the reasons for the refusal of his application and also information as to the persons whose observations were sought on his application. No reply was received to these letters. Consequently the applicant sought judicial review of the respondents decision refusing him temporary release on the grounds that he was refused release because he belonged to a particular category of prisoner, the respondent failed to provide reasons for his decision, the respondents decision breached the applicant's legitimate expectation and also because the respondent failed to provide a list of persons whose observations were sought in relation to the applicant's application.

The respondent had a policy in respect of granting temporary release to certain subversive prisoners up until 28th March 2001. Specifically in relation to members of the Real IRA or the Continuity IRA they were granted two overnights on the death of a parent, spouse or child, each case was considered on its individual merits, applications for temporary release for other purposes were also considered.

Held by Finnegan J in refusing the applicant's application: 1. That the policy employed by the respondent in relation to certain paramilitary prisoners is distinguishable and distinct from a fixed policy not to grant temporary release to prisoners serving sentences for a specific category of offence.

Corish v Minister for Justice, Equality and Law Reform and Others [2000] 2 I.R 548 distinguished.

2. That the Court could only interfere with the policy applied by the respondent in the present case if that policy was such that no reasonable Minister could have adopted it.

3. that the policy employed by the respondent in the present case is not unreasonable in the sense in which that phrase is used in State (Keegan) v Stardust Victims Compensation Tribunal [1986] I.R. 642.

4. That the European Prison Rules and the Management of Offenders - A Five Year Plan (Department of Justice 1994) are not binding in this state but merely constitute certain recommendations of the Committee of Ministers of the Council of Europe to which Ireland was a party. To allow the adherence of the State to an international agreement to create a legitimate expectation would be to admit such an agreement into the domestic law of the State by the back door and to ignore the constitutional prohibition.

Kinahan v The Minister for Justice, Equality and Law Reform and Others Supreme Court, 21st February, 2001 followed.

Tara Prospecting Limited v Minister for Energy [1993] I.L.R.M. 771 distinguished.

5. That it is desirable that a quasi judicial or administrative decision capable of judicial review or appeal should be accompanied reasons. In the present case it was not sufficient to merely recite the criteria upon which the respondent's decision was based as the criteria against which the applicant's application had been considered were set out in a policy that was not communicated to the applicant.

P.B. & L v Minister for Justice, Equality and Law Reform Unreported Supreme Court, 30th July, 2001 distinguished.

6. That because the respondent exhibited in a replying affidavit the matters that were taken into consideration in arriving at the decision to refuse the application and these matters related to the criteria already furnished to the applicant, the applicant then knew the reasons for the refusal and accordingly no relief should be granted for the failure to provide reasons.

7. That there is no entitlement to a hearing or enquiry upon an application for temporary release. Accordingly a list of persons whose observations were sought in relation to the application is not required by the principles of natural justice.

Reporter: L O'S

1

Judgment of Mr. Justice Finnegandelivered on the 11th day of April 2002

2

The Applicant was granted leave to apply for the following reliefs by way of Judicial Review

3

(i) An Order of Certiorari quashing the decision of the Respondent made on the 26th day of October 2000 to refuse the Applicant's request for compassionate temporary release.

4

(ii) A Declaration that the Applicant is entitled to be furnished with the reasons why his application for compassionate temporary release has been refused.

5

(iii) A Declaration that the Applicant is entitled to be furnished with a list of persons whose observations were sought in relation to his application for compassionate temporary release.

6

(iv) An Order directing the Respondent to make discovery on oath of all documentation, data or information within their possession, power or procurement relevant to the matters at issue in this Application.

7

The grounds upon which leave was granted are as follows -

Refusal to Grant Compassionate Temporary Release
8

(i) The refusal of the Respondent to grant the Applicant compassionate temporary release on the basis that the Applicant belongs to a particular category of prisoner is ultra vires section 2 of the Criminal Justice 1960.

9

(ii) The refusal of the Respondent to grant the Applicant compassionate temporary release on the basis that the Applicant belongs to a particular category of prisoner amounts to unlawful discrimination contrary to Article 40 of the Constitution.

10

(iii) In the absence of reasons the refusal of the Respondent to grant the Applicant compassionate temporary release is a breach of the Applicant's right to dignity.

11

(iv) The refusal of the Respondent to grant the Applicant compassionate temporary release is a breach of the Applicant's legitimate expectation.. Rule 43(2) of the European Prison Rules provides that there shall be a system of prison leave consistent with the treatment objectives of Part IV of those Rules. Rule 70(2) provides that provision for prison leave should be granted to the greatest extent possible on medical, educational, occupational, family and other social grounds. According to The Management of Offenders-A Five Year Plan (Department of Justice 1994) one of the main aims of the Prison Service is to "have due regard to the European Prison Rules to which Ireland has subscribed". There is no mention of the European Prison Rules in the criteria used by the Minister to determine applications for compassionate temporary release. Nor is there any indication that the Minister took into account the fact that provision for prison leave should be granted to the greatest extent possible.

Refusal to Give Reasons
12

(i) The refusal of the Respondent to provide the reasons for his refusal to grant the Applicant compassionate temporary release is a breach of the Applicant's right to fair procedures and to a fairhearing.

13

(ii) The refusal of the Respondent to provide the reasons for his refusal to grant the Applicant compassionate temporary release is a breach of the Applicant's constitutional right to due process.

14

(iii) The refusal of the Respondent to provide the reasons for his refusal to grant the Applicant compassionate temporary release is a breach of the Applicant's right to dignity and equality.

15

(iv) In the absence of reasons the Applicant is prevented from making adequate representations for future temporary release as he does not know what the objections to his previous applications have been.

16

(v) In the absence of reasons the Applicant is severely impeded in determining whether or not the refusal to grant him...

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