McKevitt -v- Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 09 December 2014
• Neutral Citation: [2014] IEHC 551
• Court: High Court
• Date: 09 December 2014

[2014] IEHC 551

THE HIGH COURT

[No. 513 J.R./2014]

McKevitt v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

MICHAEL MCKEVITT

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY, IRISH PRISON SERVICE, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

OFFENCES AGAINST THE STATE ACT 1939 S2

OFFENCES AGAINST THE STATE ACT 1939 S19

OFFENCES AGAINST THE STATE ACT 1998 S6

PRISON RULES SI 252/2007 r59(1)

PRISON RULES SI 252/2007 r59(2)

PRISON RULES SI 252/2007 r59

PRISON RULES SI 252/2007 r27(2)

PRISON RULES SI 252/2007 r27(3)

CONSTITUTION ART 40.4.2

RYAN v GOVERNOR OF MIDLANDS PRISON UNREP BARRETT 2.7.2014 2014 IEHC 338

FARRELL v GOVERNOR OF PORTLAOISE PRISON & ORS UNREP HOGAN 5.8.2014 [TRANSCRIPT NOT AVAILABLE]

CONSTITUTION ART 40

CONSTITUTION ART 13.6

CRIMINAL JUSTICE ACT 1951 S23

CRIMINAL JUSTICE ACT 1951 S23(A)

PRISON ACT 2007 S35

KINAHAN v MIN FOR JUSTICE & ORS 2001 4 IR 454 2001/13/3766 2001 IESC 16

MURRAY v IRELAND 1991 ILRM 465

CALLAN v IRELAND & AG 2013 2 ILRM 257 2013/9/2420 2013 IESC 35

KEOGH v GOVERNOR OF MOUNTJOY PRISON UNREP PEART 5.8.2014 2014 IEHC 402

ROGAN PRISON LAW 2014

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-7 ILRM 50

PRISONS (AMDT) (NO 2) RULES 2014 SI 385/2014

1 JUDGMENT of Mr. Justice Kelly delivered on the 9th day of December, 2014

Introduction

2 1. On 6th August, 2003, the applicant was convicted by a Special Criminal Court of two offences. The first was membership of an unlawful organisation contrary to s. 2 of the Offences Against the State Act 1939, as amended. He was sentenced to a term of six years imprisonment on that charge.

3 2. He was also convicted of the more serious offence of directing the activities of an organisation in respect of which a suppression order had been made under s. 19 of the Offences Against the State Act 1939, contrary to s. 6 of the Offences Against the State Act 1998. He was sentenced to a term of twenty years imprisonment on that count. The sentences were directed to run concurrently and to date from 29 ^th March, 2001. That was the date upon which the applicant was first taken into custody.

4 3. It is common case that the applicant has served the entirety of his sentence on the E2 "Republican" landing of Portlaoise Prison.

5 4. The respondents accept that the applicant has a current prospective release date of 26 ^th March, 2016. That date is calculated by giving him full credit for the one quarter remission envisaged in r. 59(1) of the Prison Rules 2007 (the Rules). Such remission can, of course, only be gained by good conduct.

6 5. The applicant contends that he is entitled to an enhanced remission of sentence in excess of one quarter. Such remission is provided for by r. 59(2) of the Rules. On 14 ^th July, 2014, he applied to the Governor of Portlaoise Prison for one third remission of his sentence which is the maximum permitted under r. 59(2) of the Rules. That application was, in due course, considered by the first respondent who decided not to grant the remission sought. In these proceedings, the applicant seeks an order of certiorari quashing that decision of the first respondent dated 11 ^th August, 2014.

The Relevant Prison Rules

7 6. Rule 59 of the Rules reads:-

8 2 "(1) A prisoner who has been sentenced to -

9 (a) a term of imprisonment exceeding one month, or

10 (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.

11 (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 reoffend and will be better able to reintegrate into the community."

12 7. The term "authorised structured activity" is mentioned in Rule 27(2) which reads:-

13 2 "(2) Subject to Rule 72 (Authorised structured activity), each prisoner may, while in prison, engage or participate in such structured activity as may be authorised by the Governor (in these Rules referred to as 'authorised structured activity') including work, vocational training, education, or programmes intended to ensure that a prisoner, when released from prison, will be less likely to re-offend or better able to re-integrate into the community."

14 Rule 27(3) reads:-

15 2 "(3) In so far as is practicable, each convicted prisoner should be engaged in authorised structured activity for a period of not less than five hours on each of five days in each week."

The Applicant's Evidence

16 8. The applicant swore an affidavit in support of this application on 27 August, 2014. On the same date, the applicant's solicitor made an affirmation in support of the application. The following facts deposed to are relevant.

17 9. The applicant is now 65 years old and has spent the whole of his sentence on the E2 landing at Portlaoise Prison. He was a serving prisoner when the Rules were introduced. The Rules were notified to prisoners by means of a notice placed on the prison notice board. He made enquiries with the Governor of the Prison shortly after this notification as to the work to be done to gain enhanced remission as provided for in the Rules. He says the Governor was not able to provide an answer and referred him to an official from the Irish Prison Service.

18 10. That official was, it is said, unable to provide any guidance in respect of the interpretation of Rule 59(2). In particular the official did not advise the applicant that certain activities would be preferred by the Minister or that certain activities were not worth engaging in or that work carried out by inmates on the E2 landing would not count as authorised structured activities.

19 11. Despite the absence of formal guidance the applicant says that he has always endeavoured to engage in the available activities. He has completed a number of courses and describes himself as a "model prisoner" for the last ten years at least. He has been disciplined on two occasions. The first was in 2001 and the second in 2004. On both occasions, he says, the disciplinary measures resulted from a collective action taken by the Prison Service against the general population of prisoners on the landing.

20 12. He says that he has successfully completed studies in computers, digital imaging, French, English, web design, Photoshop, creative writing, art, speech and drama, music, home economics and yoga. He received a merit in computer literacy through FETAC and has completed Level 3 FETAC courses in French and digital imaging. He also studied with the Leinster School of Communications and London Guildhall and received merits in spoken English and speaking skills. He has also studied creative writing with the Open University. He has been given temporary release on two occasions. The first was in April 2004 and the second in January 2012. Each release was for a period of two days.

The Application for Enhanced Remission

21 13. On 14 ^th July, 2014, the applicant applied to the Governor of the Portlaoise Prison for one third remission of sentence pursuant to the provision of Rule 59(2) of the Rules. In the course of his application he pointed out that his scheduled release date is March 2016 but, if he were to receive one third remission, he would expect to be released in late July 2014. He stated that throughout his period of detention in Portlaoise Prison, he had engaged in authorised structured activity with the Prison Education Unit. This activity also included health and safety and food management activities on the E2 landing. He completed his application by saying that his conduct had been good and that his positive influence on the landing had resulted in him being categorised as an enhanced prisoner.

22 14. On 15 ^th July, 2014, Mr. Paul Mannering of the Operations Directorate of the Irish Prison Service responded in the following terms:-

"I am directed by the Minister for Justice and Equality, Ms. Frances Fitzgerald T.D., to reply to your recent letter requesting to be considered for one third remission."

23 Section 59(2) of the Prison Rules, 2007 allows for the discretionary granting of additional remission - up to one third as opposed to the standard rate of one quarter - by the Minister where a prisoner has shown the following:-

24 (i) to have displayed good industry in prison and continue (sic) to be of good conduct.

25 (ii) to display the willingness to seek employment through education/coursework whilst in prison to enhance their chances of gaining employment on release.

26 (iii) through engagement in authorised structured activity and where, as a result, the prisoner is less likely to re-offend and would be better able to reintegrate into the community.

27 An essential part of the criteria for rewarding one third remission is that applicants engage in offence focused work which in turn should lead to reduced risk of re-offending. The Minister considers committed and concrete engagement with the therapeutic services within the prison, in the context of offence focused work, an essential requirement for the granting of one third remission.

28 I am therefore requesting you to submit evidence of offence focused work (to be supported with the proper documentation) in order for your application to be considered."

29 15. On 21 ^st July, 2014, the applicant responded as follows:-

"Dear Governor Gavin,"

30 I have applied for one third remission under s. 59(2) of the Prison Rules 2007.

31 I believe that I comply with criteria laid down for awarding a one third remission under s. 59(2) of the Prison Rules 2007,...