McCormack v Min for Justice
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 21 September 2015 |
| Neutral Citation | [2015] IEHC 578 |
| Court | High Court |
| Date | 21 September 2015 |
[2015] IEHC 578
THE HIGH COURT
BETWEEN:
AND
Crime & Sentencing – S. 27B of the Firearms Act 1964 – R. 59 of the Prison Rules, 2007 – Remission of sentence – Nature and gravity of offence – Discretion of Minister – Fair procedures
Facts: The applicant sought an order of certiorari for quashing the decision of the respondent refusing to remit one-third sentence of the applicant. The applicant who had been sentenced to imprisonment owing to the possession of a shotgun with intent to commit an indictable offence contended that the Operations Directorate of the respondent should not be involved in the application process for enhanced remission under the Prison Rules, 2007 and that the decision of the respondent was arbitrary and capricious as it failed to consider the educational and training courses the applicant had completed since his committal to the prison.
Mr. Justice Kearns P. refused to grant an order of certiorari to the applicant. The Court held that the decision of the respondent was sound and cogent and the participation by the prisoners in training and education courses would not automatically give them the automatic right to seek enhanced remission. The Court held that the respondent had been given wide discretionary powers to consider an application for enhanced remission wherein the respondent must consider the nature and gravity of offence and the likelihood of the applicant to re-offend as desired for the common good.
JUDGMENT of Kearns P. delivered on the 21st day of September, 2015
In these proceedings the applicant seeks an order of certiorari quashing the decision of the respondent to refuse the applicant one third remission of his sentence under Rule 59(2) of the Prison Rules 2007 as amended.
S.I. No. 252/2007 - Prison Rules, 2007 provides at Rule 59 as follows:-
2 "(1) A prisoner who has been sentenced to-
(a) a term of imprisonment exceeding one month, or
(b) terms of imprisonment to be served consecutively the aggregate of which exceeds one month,
shall be eligible, by good conduct, to earn a remission of sentence not exceeding one quarter of such term or aggregate.
(2) The Minister may grant such greater remission of sentence in excess of one quarter, but not exceeding one third thereof where a prisoner has shown further good conduct by engaging in authorised structured activity and the Minister is satisfied that, as a result, the prisoner is less likely to re-offend and will be better able to reintegrate into the community".
This rule was amended by the Prison (Amendment) (2) Rules 2014, S.I. No. 384 of 2014, which came into force on the 15th of August 2014, by the substitution of the following rule for sub rule (2):
2 "(2)(a) A Prisoner who has engaged in authorised structured activity may apply to the Minister for enhanced remission.
(b) An application shall be made in such form and manner and shall be accompanied by such other information and documentation as may be specified by the Minister.
(c) An application under subparagraph (a) shall not be made earlier than 6 months prior to the date on which the prisoner would be released if enhanced remission of one third of the prisoner's sentence were to be granted to him or her.
(d) Where the Minister receives an application under subparagraph (a) the Minister shall, as soon as practicable thereafter-
(i) if he or she is satisfied that the prisoner, having regard to the matters referred to in subparagraph (f) is less likely to reoffend and better able to re-integrate into the community, notify the prisoner of his or her decision to grant enhanced remission to the prisoner and the period of enhanced remission of sentence which is to apply, or
(ii) notify the prisoner of his or her decision to refuse the prisoner's application and the reasons for the refusal.
(e) A notification referred to in subparagraph (d) shall be in writing and shall be copied to the Governor of the prison in which the prisoner concerned is serving his or her sentence.
(f) The Minister shall, when making a decision in respect of an application under subparagraph (a), have regard to the following matters:
(i) the manner and extent to which the prisoner has engaged constructively in authorised structured activity;
(ii) the manner and extent to which the prisoner has taken steps to address his or her offending behaviour;
(iii) the nature and gravity of the offence to which the sentence of imprisonment being served by the prisoner relates;
(iv) the sentence of imprisonment concerned and any recommendations of the court that imposed that sentence in relation thereto;
(v) the period of the sentence served by the prisoner;
(vi) the potential threat to the safety and security of members of the public (including the victim of the offence to which the sentence of imprisonment being served by the prisoner relates) should the prisoner be released from prison;
(vii) any offence of which the prisoner was convicted before being convicted of the offence to which the sentence of imprisonment being...
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