McLoughlin v Governor of Wheatfield Prison
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 19 June 2017 |
| Neutral Citation | [2017] IEHC 414 |
| Docket Number | [2017 No. 299 JR] |
| Court | High Court |
| Date | 19 June 2017 |
[2017] IEHC 414
THE HIGH COURT
JUDICIAL REVIEW
Baker J.
[2017 No. 299 JR]
Crime & Sentencing – Enhanced remission – Extension of time – Fair procedure – Disclosure of information – Interference in administrative discretion
Facts: The applicant sought an order of certiorari for quashing the decision of the third named respondent for refusing the enhanced remission application of the applicant on the ground that the third named respondent/Minister had failed to adhere to the rules of fair procedures and natural justice. The applicant further submitted that the delay in filing the application was due to the refusal on the part of the respondents to provide the information and Garda report sought by the applicant. The respondents argued that the information and Garda report sought by the applicant was confidential and that the disclosure of such information would negatively impact the ability of the said authority to make safe decision in relation to the management of a prisoner's sentence and that the decision of the respondents was based on the information and evidence provided by the applicant to the Minister. The respondents further submitted that the application of the applicant was time barred because the three-month statutory time limit had passed.
Ms Justice Baker refused to grant the relief sought by the applicant. The Court held that the applicant's application was out of time and that the applicant delayed in bringing the application for judicial review from the time the decision was communicated to him as the prescribed time limit began from that stage. The Court opined that the applicant had not identified any facts or factors outside his control or knowledge, which would justify an extension of time because the applicant knew within time that his application for enhanced remission had been refused. The Court held that the Garda report did not form a part of the material that influenced the decision of the Minister. The Court further held that the Minister was not obliged to explain his or her reasons in detail nor a Court was likely to interfere in the exercise of ministerial discretion unless the decision had been arbitrary or unjust. The Court showed its reluctance to interfere in the discretion of the Minister to refuse enhanced remission citing McKevitt v. Minister for Justice & Ors. [2014] IEHC 551 in which case it was held that a court would interfere only when a decision was arbitrary or unjust, or where a decision maker had not given discernible reasons for his or her determination.
The applicant is serving a sentence of eleven years imprisonment imposed on 31st July, 2009, backdated to include time spent on remand in custody. He was convicted of an offence contrary to s. 15 of the Misuse of Drugs Act 1977-1984 (‘the Act’), in a trial by jury and the approximate market value of the drugs was between €440,000 and €500,000. Drugs paraphernalia and a mixing agent were also found. The applicant did not appeal either conviction or sentence. He had a previous conviction under s. 15A of the Act when he was sentenced to six years and six months imprisonment. The applicant tested positive for drugs while he was in prison, on 20th July, 2015, and 21st March, 2016.
His prospective release date with one quarter remission is 28th October, 2017. The applicant applied for an enhanced remission and this application for judicial review arises following the decision by the Minister for Justice and Equality to refuse him enhanced remission. Had the application for enhanced remission been successful, the applicant's release date would have been 28th November, 2016.
Leave to apply by way of an application for judicial review for orders of mandamus, certiorari and declarations was granted by Noonan J. on 3rd April, 2017. The applicant seeks an order of certiorari on the grounds that the Minister failed to give any or any adequate reasons for her decision, and that the decision was made in the absence of fairness of process and natural justice.
The application was heard by me on 31st May and 1st June, 2017 and judgment was reserved.
By order made on 24th April, 2017, the applicant was given leave to amend the statement of grounds to seek an order extending time to bring the application for an order of certiorari, but not with regard to the other reliefs sought in the form of mandamus and declaratory relief.
The respondents argue that the applicant knew the reasons why he had been refused enhanced remission from, at the latest, 26th November, 2016 and the three month statutory time limit had passed when the leave application was made ex parte on 3rd April, 2017.
The applicant argues that because of his ongoing engagement through his solicitor with the Minister, time did not begin to run until at the earliest, 10th February, 2017 or 16th March, 2017, when correspondence ceased.
In those circumstances, I turn now to consider the chain of correspondence.
The applicant lodged an application in person seeking enhanced remission on 16th June, 2016. A reply was sent on 26th August, 2016, said to have been ‘reissued’ on 11th November, 2016. The letter of reply was sent to the Governor of Wheatfield Prison and the applicant's solicitor in her first letter of 17th January, 2017, suggests that the reply from the Minister was not received by the applicant until an unidentified date in November. I propose in those circumstances taking as a starting point that the letter of refusal was received on 26th November, 2016.
The solicitors for the applicant in their letter of 17th January, 2017, noted the basis of the Minister's decision and expressed surprise that the applicant's application had been dismissed, and sought further information regarding the basis for the refusal. The solicitors for the applicant raised the question of whether the decision of the Minister had been made on the basis of matters other than his behaviour in custody. In particular, it was noted that the letter communicating the decision to refuse enhanced remission included a reference to the ‘Garda view’ and asked for all copies of reports and minutes supplied to the Minister by any agency which were relevant to her considerations. It was noted that in an application to the Parole Board, a prisoner is supplied with a dossier in relation to all reports submitted to that Board, and that the writer saw no reason why a similar approach was not appropriate in the case of a refusal of an application for enhanced remission.
A letter was sent in reply on 20th January, 2017, from the Irish Prison Service in which it was said that the decision made by the Minister was ‘based on the information and evidence provided by Mr. McLoughlin’. It was acknowledged that Mr. McLoughlin had engaged in authorised structured activity and it was also acknowledged that ‘prior to making the decision, the Minister also sought views regarding his conduct while in custody and the views of An Garda Síochána’. Because the conviction of Mr. McLoughlin related to the supply of drugs under the Misuse of Drugs Act, the letter noted the significance of the fact that Mr. McLoughlin had not accepted or acknowledged that he had any addiction issue ‘despite drugs playing a significant part in his offence’. It was noted that the applicant had been disciplined under the Prison Rules on two occasions after testing positive for drugs.
The letter refused to furnish copies of the reports the Minister considered in relation to the application on the basis that they were ‘compiled and submitted on a confidential basis’ and that to disclose information ‘may negatively impact the free flow of information between parties relating to prisoners which is central to the Prison Services ability to make safe decisions in relation to the management of a prisoner's sentence’. It was noted that this particular approach was consistent with the authorities, in particular the judgment of Noonan J. in Doody v. Governor...
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McGinley v Minister for Justice
...of enhanced remission is an executive matter not administrative function (see also McLoughlin v. Governor of Wheatfield Prison [2017] IEHC 414, para. 26 per Baker J.). When dealing with measures at the core of executive power (such as refusal of temporary release, parole or remission, or t......