O'Reilly v The Governor of the Midlands Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 30 April 2020 |
| Neutral Citation | [2020] IEHC 201 |
| Docket Number | 2020 No. 282 J.R. |
| Court | High Court |
| Date | 30 April 2020 |
[2020] IEHC 201
Garrett Simons J.
2020 No. 282 J.R.
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Temporary release from prison – Revocation – Applicant seeking to challenge a decision to revoke an earlier direction that the applicant be granted temporary release from prison – Whether the decision to revoke the temporary release was lawfully made
Facts: The applicant, Mr O’Reilly, applied to the High Court seeking to challenge a decision to revoke an earlier direction that the applicant be granted temporary release from prison. The period of temporary release had been cut short following a complaint by An Garda Síochána to the prison authorities to the effect that the applicant had been found trespassing on private property in the company of a number of individuals. The applicant said that he was on the lands for the purpose of hunting rabbits and it was submitted on his behalf that this did not constitute a criminal trespass. The requisite criminal intent was said to be absent. The two principal issues for determination were as follows: (i) whether the informal inquiry conducted by the prison authorities into the alleged incident was adequate; (i) whether the fact that the one-month period of the temporary release had expired by effluxion of time had rendered the judicial review proceedings moot.
Held by Simons J that the respondent, the Governor of the Midlands Prison, was entitled to rely on the applicant’s admission to having been present on private property, in the context of the information provided by An Garda Síochána to the effect that the applicant had been in the company of known criminals on lands within an industrial estate, in reaching the conclusion that the applicant was in breach of his undertaking to be of “good behaviour”. Simons J held that the Governor was also entitled to place some weight on the fact that An Garda Síochána had indicated an intention to pursue a prosecution against the applicant. Simons J held that a prison governor is not required to carry out an inquiry equivalent to a criminal prosecution; nor is a prison governor required to be satisfied beyond all reasonable doubt that a prisoner has breached his undertaking to be of “good behaviour”. Simons J held that it was sufficient that the conclusion was reasonable and based on objective material. Simons J held that the decision of the Governor met these criteria. Simons J held that the Governor was not required to negate a possible defence to a criminal prosecution, namely that it had not been proved beyond a reasonable doubt that the applicant had criminal intent; it was sufficient for the purpose of the decision to cut short a period of temporary release by a number of days that the circumstantial evidence was such to allow an inference to be drawn. Simons J held that the Governor also complied with the requirement to afford fair procedures to the applicant; the allegation had been put to the applicant, and he had been afforded an opportunity to respond to same. Simons J held that his response, namely an admission to having been present on private property without the owner’s permission, was enough to remove any concern as to mistake or reasonable excuse, as identified in the case law (in particular, State (Murphy) v Kielt [1984] I.R. 458 at 472). Simons J held that the decision to revoke the temporary release was lawfully made. He held that it was unnecessary, therefore, for the Governor to rely on the alternative defence, namely that the proceedings were moot.
Simons J held that the application for judicial review would be dismissed.
Application dismissed.
These judicial review proceedings seek to challenge a decision to revoke an earlier direction that the Applicant be granted temporary release from prison. The period of temporary release had been cut short following a complaint by An Garda Síochána to the prison authorities to the effect that the Applicant had been found trespassing on private property in the company of a number of individuals. The Applicant says that he was on the lands for the purpose of hunting rabbits; and it is submitted on his behalf that this does not constitute a criminal trespass. The requisite criminal intent is said to be absent.
The two principal issues for determination in this judgment are as follows. First, was the informal inquiry conducted by the prison authorities into the alleged incident adequate. Secondly, does the fact that the one-month period of the temporary release has now expired by effluxion of time render the judicial review proceedings moot.
The provisions regulating the grant of temporary release to prisoners were subject to significant amendment by the Criminal Justice (Temporary Release of Prisoners) Act 2003. The amendments were achieved by the substitution of a new section in the place of the original section 2 of the Criminal Justice Act 1960 ( “the CJA 1960”). Relevantly, the post-2003 version of the CJA 1960 now provides that the (temporary) release of a prisoner shall not confer an entitlement on that person to further such release. This amendment has been interpreted as “ushering in a different statutory regime”, which has the effect of converting the grant of periodic temporary releases into discrete decisions in respect of each period for which it is granted. ( Rock v. Governor of Arbour Hill Prison [2015] IEHC 45).
The above amendments were commenced on 12 November 2004 (S.I. No. 679 of 2004). This significant change in the statutory framework must be borne in mind when reading the pre-2004 case law. In particular, certain aspects of the judgment of the Supreme Court in Dowling v. Minister for Justice [2003] IESC 33; [2003] 2 I.R. 535 cannot necessarily be “read across” to the amended legislation. There, the Supreme Court had characterised the grant of a series of “monthly renewable temporary releases” as constituting a general temporary release, subject to the specified conditions of the release being complied with. The Supreme Court interpreted the wording of the original temporary release decision in that case as conveying that the prisoner was going to be indefinitely on temporary release, provided that he was of good behaviour.
Section 2 of the Criminal Justice Act 1960 (as amended) authorises the Minister for Justice and Equality ( “the Minister”) to direct that a person who is serving a sentence of imprisonment shall be released from prison for such temporary period, subject to such conditions, as may be specified in the direction or in rules made by the Minister.
6. Section 2(7) of the Criminal Justice Act 1960 (as amended) empowers the Minister to make rules as follows.
(7)(a) The Minister may make rules for the purpose of enabling this section to have full effect and such rules may contain such incidental, supplementary and consequential provisions as the Minister considers to be necessary or expedient.
(b) Rules under this section may specify conditions to which all persons released pursuant to a direction under this section shall be subject or conditions to which all persons belonging to such classes of persons as are specified in the rules shall be subject.
As appears, the Minister has discretion to specify what might be described as “mandatory” or “standard” conditions applicable to all prisoners granted temporary release. The Minister has exercised this discretion by way of the Prisoners (Temporary Release) Rules 2004 (S.I. 680 of 2004). The following conditions apply to all grants of temporary release.
3. In addition to any conditions specified in a direction, the release of a person pursuant to a direction shall be subject to the following conditions:
(a) that the person shall keep the peace and be of good behaviour during the period of his or her release,
(b) that the person shall be of sober habits during that period, and
(c) that the person shall return to the prison from which he was released on or before the expiration of the period for which he was released.
As appears, one of the mandatory conditions is that the released prisoner shall keep the peace and be of “good behaviour” during the period of his or her release. The Court of Appeal has recently had cause to consider what is meant by the concept of “good behaviour” in its judgment in McNamee v. Director of Public Prosecutions [2017] IECA 230; [2017] 3 I.R. 347. This issue arose in the context of a pending prosecution pursuant to section 6 of the Criminal Justice Act 1960. The applicant for judicial review was being prosecuted for being “unlawfully at large”. The alleged offence was said to have occurred as a result of the applicant having broken a condition of his temporary release from prison by failing to be of “good behaviour”, by attempting to commit an offence of trespass.
The applicant sought to challenge the constitutionality of section 6 on the basis that the offence was impermissibly vague. Mahon J., delivering the unanimous judgment of the Court of Appeal, identified the issue before the court as follows (at paragraph 21 of the judgment).
“What is meant by ‘good behaviour’ in the context of a requirement to ‘be of good behaviour’ as a condition of temporary release? Can it be said that the term is sufficiently capable of definition that a person subject to its strictures knows what is required of him or her in the situation of being granted temporary release? Is it simply a requirement not to commit further crime of any sort, or are the words reasonably capable of also embracing activity (or lack of activity) which is not, and could never be criminal? Is a person on whom such a requirement is imposed left in a position of uncertainty as to what is expected of them?”
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