McGinley v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 28 September 2017
• Neutral Citation: [2017] IEHC 549
• Docket Number: [2017 No. 675 J.R.]
• Court: High Court
• Date: 28 September 2017

[2017] IEHC 549

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 675 J.R.]

BRIAN MCGINLEY

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Crime & Sentencing – Prison Rules 2007 – Practice and Procedures – Factors for grant of bail – Refusal of enhanced remission – Post-conviction bail.

Facts: The applicant sought an order from the Court admitting him to bail pending the determination of the judicial review proceedingsagainst therefusal of the applicant's application for enhanced remission. The key issue arose as to whether the bail should be granted post conviction of the applicant.

Mr. Justice Richard Humphreys dismissed the applicant's application. The Court refused to grant the bail to the applicant. The Court recommended that the applicant should be paid the costs under the Legal Aid (Custody Issues) Scheme and also appointed solicitors and counsel for the applicant's assistance. The Court held that at the substantive stage, pending the determination of the judicial review proceedings, it could not grant a bail order to the effect of the release of the applicant.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 28th day of September, 2017

1 On the 13th February, 2005, the applicant committed an offence of aggravated burglary. This involved the invasion of a family home by four masked men, including the applicant, the gang being armed with a sledge-hammer, baseball bat and other offensive weapons. The offence involved threats of an extremely violent and sexually threatening nature being made. The father was repeatedly assaulted and he and the grandfather were tied up. The mother, young children and a young cousin were falsely imprisoned. It was part of the prosecution case that a knife from the kitchen was held to a child's throat, although Mr. McGinley demurred on this point. A safe containing a large amount of valuable personal property and a vehicle were stolen. The applicant was identified through DNA, which was not available for the other perpetrators.

2 On 5th November 2010 the applicant was convicted and on 1st December, 2010, was sentenced to a period of ten years' imprisonment, backdated to 5th November, 2010. The conviction was unsuccessfully appealed to the Court of Criminal Appeal ( The People (D.P.P.) v. McGinley [2014] IECCA 7) as subsequently was the sentence. No-one else appears to have been convicted in this regard. The applicant has not co-operated with the prosecuting authorities in relation to identifying and prosecuting the other perpetrators.

3 While in custody, the applicant received disciplinary notices on 16th March, 2012, 22nd June, 2012 and 21st July, 2013.

4 Where an applicant qualifies for enhanced remission, the rate of remission is one-third rather than the normal one-quarter. Thus the applicant's release date, if he had been entitled to enhanced remission was 5th July, 2017. The release date if normal remission applies is 5th May, 2018. If the Minister (as he is in principle entitled to do) were to decide to hold the disciplinary notices against the applicant such that the applicant would not qualify for remission at all, his release date would be 5th November, 2020.

5 The applicant applied for and was refused enhanced remission. The refusal was contained in a minute dated 18th July, 2017, from the Operations Directorate of the Irish Prison Service to the Governor of Castlerea Prison, which set out the statutory criteria to which the Minister is obliged to have regard.

6 The conclusion of the minute is that 'The minister, having considered your application for enhanced remission, including all materials supplied in support of the application and the matters outlined above has decided to refuse your application. While it is acknowledged that you have engaged in some authorised structured activity, the Minister having had regard to the nature and gravity of the offence to which the sentence of imprisonment being served relates, potential threat to the safety and security of the public and the Garda view, is not satisfied that you are less likely to reoffend and are better able to re-integrate into the community'.

Procedural history

7 On the 18th August, 2017, the applicant applied for leave to seek judicial review of that refusal to grant enhanced remission.

8 The statement of grounds challenging this conclusion sets out an embarrassing multitude of allegations in 38 separate numbered grounds. Such a profusion of legal verbiage is difficult to square with the strictures of the judgment of MacMenamin J. in Babington v. Minister for Justice and Equality [2012] IESC 65.

9 The reliefs sought in the statement are an order quashing the refusal decision, an order of mandamus requiring reconsideration of the application, and various interlocutory reliefs.

10 When granting leave, McDermott J. cut down the application by giving leave only for the order of certiorari, and only on grounds number 22 and 24 to 37 inclusive.

11 By motion dated 21st August, 2017, the applicant applied for an order admitting him to bail pending the determination of the judicial review proceedings. That motion was returnable for, and heard on, 13th September, 2017, and forms the subject-matter of this judgment.

An application for bail in an enhanced remission judicial review is misconceived.

12 There is a jurisdiction to grant bail in civil cases (see B.O. v. Minister for Justice Equality and Law Reform [2006] 3 I.R. 219 per Herbert J.), but in my view it should only be exercised in a civil case which itself could lead to the release of the prisoner. It is one thing to grant bail in say an Article 40 application, but the jurisdiction to grant bail is not a power to be exercised in relation to proceedings regarding incidental matters where the ultimate order of the court is not going to be one directing release.

13 As Ní Raifeartaigh J. pointed out, very pertinently if I may respectfully say so, in the similar challenge brought in Bradley v. Minister for Justice and Equality [2017] IEHC 422 at para. 54, ' in reality, [the applicant] cannot get what he ultimately wants from the Court in any event, namely a grant of enhanced remission. At best, he can have the existing decision quashed and the matter remitted for decision again.'

14 That fundamental difficulty is, in my view, fatal to any application of the type presented here. Where the ultimate order of the court in judicial review proceedings is, at best, the quashing of a refusal and a requirement to reconsider, it is simply not appropriate for the court to grant by way of interlocutory bail order a relief that it would not grant at the substantive stage, namely the release of the applicant. While it is true that, as Mr. Séamus Clarke B.L. (with Mr. Karl Monahan B.L.) for the applicant pointed out in the course of an able submission, an applicant could be released on bail and then returned to custody after the determination of the judicial review, it would be an improvident and inappropriate exercise of the discretion to grant bail in civil cases to exercise that power in cases where the court would not in any event be granting release at the end of the judicial review, as to do so would lead to a host of anomalies. Would the bail continue if the decision was quashed and remitted to the Minister? If so, there is nothing to stop future applications and future challenges, the outcome being that one could stay at liberty as long as one kept litigating. That is not the law. Nor is it a desirable or proper outcome. The application fails in limine.

Factors relevant to the exercise of discretion to grant bail

15 If I am wrong about the foregoing I will go on to consider the balance of factors as regards a grant of bail in a case of this kind. In Arra v. Governor of Cloverhill Prison [2005] 1 I.R. 379, Clarke J. held that 'The factors which should lead to the exercise of a court's jurisdiction in circumstances such as this [i.e. in a judicial review context] are wider than those that would apply in the case of the grant of bail pending trial on a criminal charge' (p. 381). The applicant's submissions here do not correctly decode this legal language into practical terms. Having regard to a wider range of factors does not mean that bail should be granted in a wider range of circumstances. If anything it means that there are a wider range of reasons, on balance, against release of a convicted person on bail in a civil case.

16 Clarke J. pointed out that the presumption of innocence does not apply post-conviction and that 'It is well established that persons convicted upon trial by indictment are not ... entitled to release pending an appeal. While there are, of course, cases where persons have been admitted to bail pending appeal it would, I think, be fair to characterise same as being the exception rather than the norm.'

17 The wider set of factors which were considered by Clarke J. in that case included that 'A heavy weight in any consideration needs to be given in favour of giving effect to a statutory provision' which benefits from the presumption of constitutionality where that forms the subject of a challenge in the judicial review proceedings. While such a constitutional challenge is not involved in the present case, the presumption of regularity and lawfulness as to administrative decisions is, analogously, relevant here, the onus of proof in the judicial review proceedings being firmly on the applicant.

18 The second factor to which regard was had by Clarke J. as regards the non-constitutional grounds of challenge in Arra, was that 'it is, nonetheless, necessary to give some weight to the fact that the applicant is currently in prison on foot of an order of a court of competent jurisdiction which is not manifestly ill-founded' (p. 384).

19 Reliance is placed on the discussion of this issue in Mark de Blacam's...