Stephen Rock v Governor of Arbour Hill Prison and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 06 February 2015
• Neutral Citation: [2015] IEHC 45
• Judgment citation (vLex): [2015] 2 JIC 0607
• Court: High Court
• Date: 06 February 2015

[2015] IEHC 45

THE HIGH COURT

[No. 584JR/2014]

Rock v Governor of Arbour Hill Prison & Ors

JUDICIAL REVIEW

BETWEEN

STEPHEN ROCK

APPLICANT

AND

THE GOVERNOR OF ARBOUR HILL PRISON, THE GOVERNOR OF THE MIDLANDS PRISON, THE IRISH PRISON SERVICE, AND THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

NOTICE PARTY

CONSTITUTION ART 40

CRIMINAL JUSTICE ACT 1960 S2

CRIMINAL JUSTICE (TEMPORARY RELEASE OF PRISONERS) ACT 2003 S1

MURPHY, STATE v KIELT 1984 IR 458 1985 ILRM 141

DOWLING v MIN FOR JUSTICE 2003 2 IR 535 2003/12/2687

LYNCH & WHELAN v MIN FOR JUSTICE & ORS 2012 1 IR 1 2012/23/6653 2010 IESC 34

CRIMINAL JUSTICE (TEMPORARY RELEASE OF PRISONERS) ACT 2003 S2(6)

PRISONERS (TEMPORARY RELEASE) RULES 1960 SI 167/1960

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001/6/1371

HUNTER, IN RE 1989 NIJR 86

MINISTER

Powers

Imprisonment - Temporary release - Conditions - Revocation - Fair procedures - Judicial review - Certiorari - Discretionary remedy - Whether good and sufficient reason for revocation of temporary release - Whether inquiry conducted prior to revocation of temporary release - Whether inquiry conducted in compliance with fair procedures - Whether circumstances warranting exercise of discretion to quash revocation of temporary release - Dowling v Minister for Justice [2003] 2 IR 535; Lynch & Whelan v Minister for Justice [2010] IESC 34, [2012] 1 IR 1; De Roiste v Minister for Defence [2001] 1 IR 190 and Re Hunter [1989] NIJR 86 considered - State (Murphy) v Kielt [1984] 1 IR 458 distinguished - Prisoners (Temporary Release) Rules 1960 (SI 167/1960) - Criminal Justice Act 1960 (No 27), s 2 - Criminal Justice (Temporary Release of Prisoners) Act 2003 (No 34), ss 1 and 2 - Relief refused (2014/584JR - Kearns P - 6/2/2015) [2015] IEHC 45

Rock v Governor of Arbour Hill Prison and the Minister for Justice and Equality

Facts: This case concerned a judicial review applicant in which the applicant sought an order of certiorari quashing the decision of the respondent to revoke the temporary release granted to him in July 2014. The applicant, who was serving a life-sentence for murder, had availed of reviewable periods of temporary release from 2012. The last grant was made on the 8th July, 2014 and was of a two-week duration and was thus due to expire on the 22nd July, 2014. The Temporary Release form of 8th July, 2014 made clear that the applicant”s release on that occasion was subject to the conditions that he be of good behaviour and keep the peace. On the 12 ^th July, 2014 the applicant was arrested and later charged with arson and criminal damage. Following a subsequent meeting with the management of Priorswood and his key worker, the applicants release was revoked and he was returned to prison. It was submitted on behalf of the applicant that the decision made by the authorities to terminate his temporary release was unlawful and in breach of fair procedures and that no “proper” hearing had been conducted into the question as to whether the applicant”s release should have been terminated or into the question whether the conditions of release had been breached. Counsel on behalf of the applicant also argued that the applicant”s further periods of detention must also be deemed invalid, arising as a consequence of the initial invalidity in the revocation of the arrangements for temporary release.

Held by Justice Kearns in light of the available evidence and submissions presented that he would refuse the reliefs sought. Distinguishing the case at hand from the leading case of State (Murphy) v. Kielt [1984] 1 I.R. 458, Justice Kearns reasoned that there were no mistakes, no improprieties or any other factual matters available to be called in aid by the applicant. The Court was satisfied that, having regard to the particular facts of the case that an inquiry sufficient in the particular factual circumstances to satisfy the requirements of fair procedures, did in fact take place and that the revocation was, in the circumstances, lawful.

1 JUDGMENT of Kearns P. delivered on the 6th day of February, 2015

2 This is an application which commenced as an Article 40 matter but which, by court order dated the 2 ^nd October, 2014, proceeded instead by way of a judicial review application wherein the applicant seeks an order of certiorari to quash the decision of the respondent to revoke temporary release granted to the applicant on the 16 ^th July, 2014.

3 The applicant is a convicted prisoner serving a life sentence for murder. He was convicted and sentenced following the entry of a plea of guilty in 1988. At some point during his sentence he was transferred to Shelton Abbey prison from which he absconded in December 1999 and travelled to the United Kingdom. He was arrested and returned to Ireland in May 2005. He was subsequently brought before the Central Criminal Court and an order was made returning him to custody.

4 He remained in custody until he was released on temporary release in early 2012. He was granted reviewable periods of temporary release, which grants were initially one day of release per week but later increased gradually to reviewable weekly and ultimately reviewable fortnightly. He availed of grants of temporary release for the next two years during which time he resided at a required address at Priorswood House in Coolock in Dublin.

5 The last grant was made on the 8 ^th July, 2014 and was of a two-week duration and was thus due to expire in the normal course on the 22 ^nd July, 2014. The Temporary Release form of 8 ^th July, 2014 makes clear that the applicant's release on that occasion was subject to the conditions that he be of good behaviour and keep the peace. The form specifically recited that this particular grant of temporary release did not confer an entitlement to a grant of further such releases.

6 On the 12 ^th July, 2014 the applicant was arrested in relation to an incident of arson which had occurred on that date. It was alleged that he attempted to bum down a residential home with the occupants still inside and had been identified in so doing at the scene by the occupants, who knew him personally. It is further alleged that he was found outside the same house by a member of An Garda Siochana and was arrested and later charged with arson and criminal damage. He was brought before Dublin District Court where there was vigorous opposition to bail by An Garda Síochána. Notwithstanding such opposition, the District Court granted bail on terms.

7 Two days after being granted bail, the applicant was informed by staff at Priorswood House, where he had been required to reside, that he should attend for a meeting with the management of Priorswood and his key worker. He attended this meeting at which there were gardaí present. The gardaí informed him that he must come with them as they were bringing him back to prison. The applicant was placed in a garda vehicle and conveyed to Arbour Hill prison. In the present application, Garda Padraig O'Mara, who effected the arrest of the applicant at his home, has averred that he informed the applicant upon arresting him that the breach of temporary release related to the arson charges and that the applicant understood this to be so.

8 While no formal hearing was conducted prior to the revocation of temporary release, there is evidence before the Court that the applicant was aware of the reason for the revocation of his temporary release and gave an acceptance of his culpability when he was readmitted to prison, saying to Chief Officer Roche "Ah Mr. Roche, I have messed up this time". The applicant now denies making this comment, but Chief Officer Roche has averred categorically that this denial is incorrect and no application to cross-examine Chief Officer Roche on this critical conflict of fact was made during this judicial review application.

9 On the evening of the 16 ^th July, 2014, the applicant was transported from Arbour Hill prison to the Midlands Prison. He is currently awaiting trial on the charges arising from the burning of the residential home.

10 It is suggested on behalf of the applicant that the respondents failed to answer correspondence from the applicant's solicitor or to act on telephone calls placed by the solicitor seeking an explanation for the applicant's arrest and re-committal. However, it seems clear that at the time he was readmitted into custody, the applicant made no complaint about the revocation per se and the query from his solicitor did not issue until the 3 ^rd September, 2014.

11 It is submitted on behalf of the applicant that the decision made by the authorities to terminate his temporary release was unlawful and in breach of fair procedures and that no 'proper' hearing had been conducted into the question as to whether the applicant's release should have been terminated or into the question whether the conditions of release had been breached. The Court was informed that a claim for damages was not being pursued.

12 The statement of opposition filed on behalf of the respondents concedes that a 'hearing' as such did not occur in this case but it is contended that any shortcoming in this regard was not a deliberate or conscious breach of fair procedures or of any of the applicant's rights, particularly when the revocation is seen against the background that the applicant effectively acquiesced to the termination of his temporary release which, it was argued, obviated the need for a hearing on the issue. There was thus no unfairness resulting from proceeding in the manner which had occurred.

13 While the statement of opposition alleges that the plaintiff was further disentitled to relief by virtue of delay in challenging the revocation before September 2014, that contention was not maintained in...