O'Neill v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 03 July 2018 |
| Neutral Citation | [2018] IEHC 414 |
| Court | High Court |
| Docket Number | [2017 No. 303 J.R.] |
| Date | 03 July 2018 |
[2018] IEHC 414
THE HIGH COURT
JUDICIAL REVIEW
Faherty J.
[2017 No. 303 J.R.]
AND
Temporary release – Order of certiorari – Declaratory orders – Applicant seeking an order of certiorari quashing the decision of the respondents whereby his temporary release was revoked – Whether the respondents' decision was in breach of the applicant's constitutional rights
Facts: The applicant, Mr O'Neill, applied to the High Court seeking a number of reliefs, namely, an order of certiorari, by way of application for judicial review, quashing the decision of the respondents, the Minister for Justice and Equality and the Governor of Castlerea Prison, of 11th May, 2016, whereby his temporary release was revoked, together with a number of declaratory orders, including that the said decision was in breach of the applicant's constitutional rights and was unreasonable, irrational and ultra vires. He also sought declaratory orders to the effect that he was entitled to a renewal of his temporary release in circumstances where he had abided by previous conditions and that the respondents were not entitled to refuse to grant him further temporary release without affording him fair procedures, natural justice and/or constitutional justice.
Held by Faherty J that the challenge to the decision of 11th May, 2016 had not been made out.
Faherty J held that she would deny the reliefs sought.
Reliefs refused.
On 12th May, 1998, in the London Central Criminal Court, the applicant was convicted of the offence of the murder of his girlfriend, Geraldine Bindon. He was sentenced to life imprisonment with effect from 11th October, 1997. In 2000, he was repatriated to Ireland and transferred to Castlerea Prison where he has remained for the majority of his imprisonment.
The applicant's case was considered by the Parole Board ('the Board') in January 2015 which noted several positive aspects of his behaviour. The Board recommended that the applicant remain in Castlerea prison while a programme of escalating temporary release was implemented. The first named respondent agreed with this recommendation. The applicant was then granted increasing periods of temporary release from time to time. In December 2015, the first named respondent directed that the applicant be given temporary weekly release from 2nd December, 2015 to 9th December, 2015 for the purpose of pre-release/resocialisation and that this grant of weekly temporary release was to be reviewed on an ongoing basis.
Thereafter, the applicant was granted successive temporary release periods.
The applicant's last temporary release was from 4th May, 2016 to 11.00a.m. on 11th May, 2016 on the following conditions, namely that he:
'1. Shall not enter a pub, club or other licensed premises or off-license premises.
2. Shall reside at [a named address] in Ballaghaderreen, Roscommon, Ireland.
3. Agree not to change address... without a new TR [temporary release] form.
4. Be under the supervision of the Probation Service, including attending all appointments directed by [the] supervising officer & cooperating with all lawful directions of the supervising officer.
5. Shall attend the Stepping Out program in Athlone as directed. Shall continue to engage with psychologists services available to him. Report to Castlerea Garda Station. Attend a minimum of two days work made available to him [by] AA sponsor.
6. Be of Good Behaviour.
7. Do not convey messages in/out of Prison.
8. Keep the Peace.
9. Report to Castlerea (24h) Garda Station within 24 hours of release & daily thereafter in order to get [his] TR form stamped.
10. Return to Castlerea prison on the date and time [listed on his TR form].
11. Shall be of sober habits.'
On the expiration of the one week temporary release of 4th May, 2016, the applicant presented himself to Castlerea prison on 11th May, 2016, as required. It is common case that on his return to Castlerea, the applicant was returned to prison rather than being granted a further period of weekly temporary release. The circumstances of how this came about is a matter of dispute between the parties in the within proceedings. The respondent's position is that the applicant returned to Castlerea prison on the said date because his period of temporary release had expired and he was required as a matter of law to return to prison. It is also the respondent's position that on 11th May, 2016, a decision was taken not to grant the applicant a further period of temporary release. The applicant's position is that his temporary release was unfairly revoked on 11th May, 2016.
By order of the High Court (Ní Raifeartaigh J.) on 25th April, 2017, the applicant was granted leave to challenge the decision made on 11th May, 2016.
In the within proceedings, the applicant seeks a number of reliefs, namely, an order of certiorari, by way of application for judicial review, quashing the decision of the respondents of 11th May, 2016, whereby his temporary release was revoked, together with a number of declaratory orders, including that the said decision was in breach of the applicant's constitutional rights and was unreasonable, irrational and ultra vires. He also seeks declaratory orders to the effect that he was entitled to a renewal of his temporary release in circumstances where he had abided by previous conditions and that the respondents were not entitled to refuse to grant him further temporary release without affording him fair procedures, natural justice and/or constitutional justice.
The grounds upon which the relief are sought are as follows:
1. The respondents revoked the applicant's temporary release for being in a relationship with a woman [R. McD]. There was no condition of the applicant's temporary release prohibiting him from being in a relationship with another person. The revocation took place in the absence of a hearing on the issue. The applicant was not afforded any opportunity to contest the revocation. The decision by the respondents to revoke the applicant's temporary release was unreasonable, irrational and ultra vires in the absence of any information, input or observations from the applicant. In circumstances where the applicant was not in breach of any conditions of his temporary release, it is irrational that the respondents did not give him reasons for their decision to revoke his temporary release.
2. The decision to revoke the applicant's temporary release was irrational, unreasonable and ultra vires in circumstances where the applicant had complied with all conditions of his temporary release and the reason for revoking the temporary release was as a result of the applicant being in a relationship.
3. The decision to revoke the applicant's temporary release was made in breach of the rules of natural and constitutional justice (in particular, the rule of audi alteram partem) in that the respondents wrongfully committed and continue to detain the applicant in the absence of a fair hearing.
4. The decision was not supported by any or any adequate material to allow the respondents to commit the applicant to Castlerea prison.
5. The respondents acted in breach of the rules of natural and constitutional justice in that they failed to afford the applicant or his legal advisors an opportunity to make submissions and representations regarding the revocation at the subsequent review meetings.
(a) The applicant was not in breach of his temporary release conditions and in the circumstances he had an expectation that his temporary release would be renewed.
(b) The premise by which his temporary release was revoked was not related to the conditions of his temporary release. Moreover, when asked to cease his relationship with R. McD, the applicant did so promptly even though he was not obliged to do so.
(c) The respondents took irrelevant matters into consideration in terminating his temporary release and failing to afford him a new temporary release.
(d) If the respondents were contending that the applicant's conduct was such that caused them to terminate his temporary release and/or refused to renew the temporary release, there was an obligation on them to afford him fair procedures and an opportunity to address any issues arising. This was not done.
6. The applicant is entitled to fair procedures and a hearing in due course of law, in accordance with the Constitution and the European Convention on Human Rights.
In his grounding affidavit, the applicant avers, inter alia, as follows:
'16. I say that I returned to Castlrea Prison for the purposes of signing in on the 11th May, 2016 for the purposes of my weekly temporary release which I had been doing so for the previous 23 weeks. I say that I had not been provided with any advance notice or communication that anything other than signing in as per normal was to occur on this day. I say that when I approached the general entrance, I was waved around to the side entrance which allows for the transfer of vehicles in and out of the prison. I say that when the gates opened I went inside, the gates were closed behind me and I meet an ICO who brought me to the Governor's office.
17. I say that when I arrived in the Governor's office I was met by the Governor of Castlerea prison, Mr. Martin Reilly, and Mr. Paul Mannering of the Irish Prison Office. I say that I was asked by the Governor, 'did I know why I was there?'. I say that I replied 'Probation, because of a minor offence' referring to my relationship with [R. McD]. I say that the Governor responded that Probation treat the minor offences as serious as major offences. I say that I was informed that I was not going to be going anywhere for the next 4 to 5 months. I say that I was then told there would be...
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