Michael Mckevitt v Governor of Portlaoise Prison

JurisdictionIreland
JudgeMr. Justice Bernard Barton
Judgment Date01 September 2014
Neutral Citation[2014] IEHC 442
CourtHigh Court
Date01 September 2014

[2014] IEHC 442

THE HIGH COURT

[No.1352 SS/2014]
McKevitt v Governor of Portlaoise Prison
IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40 OF BUNREACHT NA hÉIREANN

BETWEEN

MICHAEL McKEVITT
APPLICANT

AND

THE GOVERNOR OF PORTLAOISE PRISON
RESPONDENT

CONSTITUTION ART 40.4.2

PRISON RULES 2007 SI 252/2007 RULE 59(2)

CONSTITUTION ART 13.6

CRIMINAL JUSTICE ACT 1951 S23

CRIMINAL JUSTICE ACT 1951 S23(A)

PRISONS ACT 2007 S35

PRISONS ACT 2007 S35(1)

PRISONS ACT 2007 S35(2)

PRISON RULES 2007 SI 252/2007 RULE 59

PRISON RULES 2007 SI 252/2007 RULE 27

OFFENCES AGAINST THE STATE ACT 1998 S6

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

PRISON RULES 2007 SI 252/2007 RULE 27(2)

PRISON RULES 2007 SI 252/2007 RULE 27(3)

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 2014 IEHC 392

OFFENCES AGAINST THE STATE ACT 1939 S21

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

IRISH TRUST BANK v CENTRAL BANK OF IRELAND 1976-77 ILRM 50

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

O'KEEFFE v BORD PLEANÁLA 1993 1 IR 39 1992 ILRM 237

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

MURRAY v IRELAND & AG 1991 ILRM 465 1991/4/999

ROYLE, STATE v KELLY 1974 IR 259

CIRPACI v GOVERNOR OF MOUNTJOY PRISON UNREP HOGAN 25.2.2014 2014 IEHC 76

MCDONAGH, STATE v FRAWLEY 1978 IR 131

BYRNE v GOVERNOR OF CASTLEREA PRISON 2007 3 IR 451 2005/7/1397 2005 IEHC 64

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

CONSTITUTION ART 40

X (F) v CLINICAL DIRECTOR OF THE CENTRAL MENTAL HOSPITAL & ANOR 2014 2 ILRM 378 2014 IESC 1

ROCHE (AKA DUMBRELL) v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 31.7.2014 2014 IESC 53

Prisoner – Release for Custody – Constitutional Law – Minister of Justice – Unlawful Incarceration – Jurisdiction – Remission of Sentence – Likelihood to re-offend – Prisoner Conduct

The facts of this case involved an incarcerated applicant seeking an order of the court directing that he be released from custody under Article 40 of the constitution. Following a previous rejection by the minister of justice to remit the applicants” custodial sentence the issue came before Barton J. in the High Court. Whether the applicant's continued incarceration is lawful was said by the applicant to be dependent upon the determination by the Court of the question as to whether or not the applicant was entitled to be granted an enhanced remission of his sentence by the Minister for Justice having regard to the provisions of Rule 59(2) of the Prison Rules 2007. In response, the respondent in the case, the governor of Portlaoise Prison, contended that the previous decision of the Minister was valid, made rationally, and in jurisdiction, also contended that an application under Article 40.4.2 of the constitution was both unwarranted and inappropriate.

Barton J carefully considered the submissions from the opposing parties. The applicant contended that on the basis of good behavior and having successfully completed and participated in authorized structured activities while serving his sentence, he qualified for and ought to have been granted a one third remission of his sentence. He contended that participation in such activities the applicant was less likely to re-offend and be better able to reintegrate in the community upon his release and that the Minister was thereby obliged to have been satisfied that the applicant met the requirements of the rule. The applicant submitted that his continued detention in Portlaoise Prison was unlawful and relied on Ryan v. The Governor of Midlands Prison [2014] IEHC 338 and Farrell v. The Governor of Portlaoise Prison and Others to bolster his case. Barton J. analyzed the procedure taken by the Minster of Justice in deciding to refuse the applicant a remission and considered relevant Supreme Court cases in relation to such decisions. Barton J. stated that the Supreme Court was, as a matter of urgency going to hear and determine the appeal in the case of Ryan v. The Governor of Midlands Prison and decided that it would be better to await that outcome as it as it would have a major influence on his reasoning in this case. Barton J. stated that the relevant law requires the courts to enquire immediately into the grounds of any person's detention, when called upon to do so, the Supreme Court held that this does not translate into a right to have every complaint a person may have examined under what was described as the same extraordinary procedure. Barton J. determined that his court was satisfied that the decision of the minister earlier 2014 refusing the application for enhanced remission is prima facie valid. The minister had appropriately followed the designated procedure and considered the conduct, character and engagement in the structured activities. Furthermore, having regard to the nature of the applicants complaint in relation to the decision by the minister and applying the law as enunciated in Ryan, it is clear that the appropriate procedure by which his complaint may be considered is in or by way of judicial review proceedings and not by way of an application under Article 40.4.2 of the Constitution. Barton J. rejected the application to be released from custody made by the applicant.

1

JUDGMENT of Mr. Justice Bernard Barton delivered the 1st day of September 2014

2

1. This is an application brought by the applicant pursuant to Article 40.4.2 of the Constitution and on foot of which he seeks an order of the court directing that he be released from custody, he being incarcerated at present in Portlaoise Prison.

3

2. The issue of whether the applicant's continued incarceration is lawful was said by the applicant to be dependant upon the determination by this Court of the question as to whether or not the applicant was entitled to be granted enhanced remission of his sentence by the Minister for Justice having regard to the provisions of Rule 59(2) of the Prison Rules 2007, (hereinafter referred to as the "Rules of 2007"). The respondent, whilst contending that the decision of the Minister was valid, made rationally, and in jurisdiction, also contended that an application under Article 40.4.2 of the constitution was both unwarranted and inappropriate.

Constitutional and Statutory basis of the Minister's power to grant remission
4

3. Article 13.6 of the Constitution provides:-

"The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities."

5

4. Having regard to this provision of the Constitution, the Oireachtas conferred the power of remission on the Government with power to delegate to the Minister for Justice and Equality by virtue of the provisions of ss. 23 and 23A of the Criminal Justice Act 1951, as amended and more specifically by s. 35 of the Prisons Act 2007, whereby the Minister for Justice and Equality was empowered to make rules for the regulation and good government of prisons, including, inter alia, for the remission of part of a prisoner's sentence.

6

5. Section 35(1) and (2) of the Prisons Act 2007, provides:-

7

(1) The Minister may make rules for the regulation and good government of prisons.

8

(2) Without prejudice to the generality of subsection (1) and to Part 3, such rules may provide for

9

(a) the duties and conduct of the Governor and officers of a prison,

10

(b) the classification of prisoners,

11

(c) the treatment of prisoners, including their diet, clothing, maintenance, employment, instruction, discipline and correction,

12

(d) the provision of facilities and services to prisoners, including educational facilities, medical services and services relating to their general moral and physical welfare,

13

(e) the acts which constitute breaches of prison discipline committed by prisoners while inside a prison or outside it in the custody of a prison officer or prison custody officer,

14

(f) the remission of portion of a prisoner's sentence.

15

(g) the manner of publication of decisions of an appeal tribunal,

16

(h) the entry to a prison of a member of An Garda Siochana in the performance of his or her functions,

17

(i) photographing and measuring prisoners and taking finger prints and palm prints from them,

18

(j) testing prisoners for intoxicants, including alcohol and other drugs."

19

6. Rule 59 of the Prison Rules 2007, provides:-

20

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

21

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

22

(b) terms of imprisonment to be served consecutively, the aggregate of which exceeds one month, shall be eligible, by conduct, to earn a remission of sentence not exceeding one quarter of such term or aggregate.

23

(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 an 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."

24

7. As to what constitutes authorised structured activity, Rule 27 of the Prison Rules 2007, provides:-

25

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...

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3 cases
  • A.C. on behalf of his mother O.C. v The Health Service Executive
    • Ireland
    • High Court
    • 7 September 2018
    ...denial of justice, or a fundamental flaw. See also the judgment of this Court in McKevitt v. The Governor of Portlaoise Prison [2014] IEHC 442. 7 The case made on behalf of the Applicant amounts to an all-out assault and challenge to the jurisdiction of the President in wardship to make the......
  • McKevitt v Minister for Justice
    • Ireland
    • Court of Appeal (Ireland)
    • 18 June 2015
    ...pursuant to Article 40.4.2° of the Constitution into the legality of his detention from High Court (Barton J.), which was refused (see [2014] IEHC 442). On the same date, the applicant was granted leave to seek an order of certiorari to quash the refusal by the first respondent to grant him......
  • P.O. v G.E. (A Minor)
    • Ireland
    • High Court
    • 10 August 2016
    ...made on foot of them. See Ryan v. The Governor of The Midlands Prison [2010] IEHC 337 and McKevitt v. The Governor of Portlaoise Prison [2014] IEHC 442. The production of a valid warrant of detention is sufficient to establish the lawfulness of the detention. Decision on the Application 68 ......

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