Supreme Court dismisses appeal quashing prison temporary release refusal due to inadequate reasons and alleged discrimination.

[2001] IESC 16

THE SUPREME COURT

No. 345/00

Hardiman J.

Geoghegan J.

Fennelly J.

JUDICIAL REVIEW

Between:

CHRISTOPHER KINAHAN

Applicant

and

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, THE ATTORNEY GENERAL, THE GOVERNOR OF PORTLAOISE PRISON

and IRELAND

Respondents

JUDGMENT of Hardiman J. delivered the 21st day of February, 2001.

Background.

1. The Applicant is serving a four year sentence for receiving stolen cheques. He was initially committed to Mountjoy prison on the

4th March, 1998. He was transferred to Portlaoise Prison on the 4th March, 1999 and to the Training Unit in Glengarriff Parade on the

6th July, 2000. He is due for release on the 8th March, 2001, less than a month hence. He has a number of previous convictions

including one for possession of drugs with intent to supply, for which he received a six year sentence. According to his own

correspondence exhibited in this case he has spent eleven of the last fifteen years in jail.

2. The Applicant made a number of applications for temporary release from prison. One of these, in November, 2000, was successful

and he has a further application pending. However, the present proceedings relate to an earlier application which he made on the

27th March, 2000 and which was refused by letter dated the 26th May, 2000.

3. While the Applicant sought a variety of reliefs in his original proceedings, on the hearing of this appeal the relief sought was

confined to an Order quashing the refusal evidenced by the letter of 26th May, 2000. This relief was sought on the basis that the

notification of the decision to refuse temporary release did not contain adequate reasons for such refusal; further or in the alternative

that the reasons actually given suggested that the decision had been come to in an irrational or unreasonable fashion; that the

criteria set out in that letter for the granting of temporary relief were themselves inadequate and inconsistent with modern penal

policy including policies to which the State, through the Council of Europe, has adhered; and that the criteria were being applied in a

discriminatory fashion.

Temporary release.

4. In the course of this hearing there was some debate about the nature of temporary release. It does not appear to me that

temporary release is a specific exercise of the general power of commutation or remission envisaged in the Constitution. Rather, it

appears to be a statutory creation administered under the Prisoners (Temporary Release) Rules 1960 (SI 167 of 1960), which

instrument was in turn made under the powers conferred by the Criminal Justice Act, 1960.

Rule 3 of the Instrument provides as follows:-

“The Governor or other officer in charge for the time being of a prison may, subject to the directions of the Minister and

subject to any exceptions which may be specified in directions of the Minister, release temporarily for a specified period a

person serving a sentence of penal servitude or imprisonment in that prison”.

5. In fact, Mr. Kinahan directed his application for temporary release in the first place to an official in the Department of Justice and

secondly, to the Minister personally. In light of this I do not think it is open to the Applicant to take a point of the sort that was

briefly canvassed in argument, to the effect that the Minister had usurped the Governor’s functions in the matter. In any event, the

decision was communicated to the Governor as well as to the Applicant and if necessary I would be prepared to hold that the letter

of the 26th May constituted a direction within the meaning of Regulation 3.

6. It is clear from the above-mentioned Statute and Regulations that temporary release is envisaged as a release from custody for a

limited period during the currency of a sentence, subject to conditions and carrying an obligation to return to the prison at its

conclusion. In this it seems quite distinct from the general executive power of remission.

The submissions.

7. On behalf of the Applicant it was submitted that the letter of the 26th May communicated no, or alternatively no adequate, reason

for the refusal of temporary release. It was submitted that, in particular by reason of certain recommendations of the Committee of

Ministers of the Council of Europe, to which Ireland was party, there is a presumption in favour of an Applicant for temporary release

being released. The relevant recommendation is a recommendation R (87)3. These recommendations, it was submitted, were

inadequately reflected in the six criteria, which according to the letter of the 26th May, 2000, applied to applications for temporary

release. It was contended that any rational application of proper criteria could only lead to the release of the Applicant. In any event

no coherent reason for refusing the application appears on the face of the letter.

8. For the Respondent, it was contended that there was a very wide discretion as to how to deal with applications for temporary

release, which was a privilege granted in an executive manner by the Minister or Governor. There was no need for a refusal to be

justified by specific reasons and in some cases it could be dangerous or unwise to do so. The Respondents did not, in the end,

contend that a decision to refuse temporary release could never be the subject of review (though there was some authority cited for

this proposition). It was however submitted that a decision of this sort could only be reviewed in the circumstances referred to in

O’Keefe v. An Bord Pleanála [1993] 1 IR 39 and The State (Keegan) v. Stardust Compensation Tribunal [1986] IR 642. These

authorities envisaged the intervention of a court with a decision only when:

“(1).It is fundamentally at variance with reason and common sense,

(2) It is indefensible as being in the teeth of plain reason and common sense,

(3) The Court is satisfied that the decision maker has breached his obligation whereby he must not fragrantly reject or

disregard fundamental reason or common sense in reaching his decision”.

Relevant Judicial Review Principles.

9. This classic line of authority was applied to decisions in relation to temporary release by Murray v. Ireland and The Attorney

General [1991] ILRM 465. There, the Supreme Court was dealing with a submission that the executive should be directed to grant

temporary release to the second-named Plaintiff and his wife, both of whom were serving life sentences for murder. However, the

ratio appears equally applicable to persons serving a determinate sentence.

10. Finlay C.J. stated at page 472 of the report:-

“It was said that a court should direct the executive to grant temporary release for this purpose. The length of time

which a person sentenced to imprisonment for life spends in custody and as a necessary consequence the extent to

which, if any, prior to final discharge, such a person obtains temporary release is a matter which under the constitutional

doctrine of the separation of powers rests entirely with the executive: DPP v. Tiernan [1989] ILRM 149.”

11. Having dealt with other contentions in relation to the conditions of imprisonment, the learned Chief Justice continued:-

“The exercise of these powers of the executive is of course subject to supervision by the Courts which will intervene only

if it can be established that they are being exercised in a manner which is in breach of the constitutional obligation of the

executive not to exercise them in a capricious, arbitrary or unjust way.

It is not however in my view permissible for the Court to intervene merely on the ground that it would have reached a

different conclusion on the appropriateness of temporary release.”

12. In my view, this decision properly emphasises the importance of the constitutional separation of powers in dealing with the

implementation by the executive of a judicially imposed sentence of imprisonment. It also correctly identifies the sole circumstances in

which the Court would be justified in interfering with a decision in relation to temporary release.

The decision.

13. I cannot accept the characterisation of the decision evidenced by the letter of the 26th May, 2000 which was advanced on

behalf of the Applicant. In my view, the letter properly set out the six criteria used to assess applications for temporary release.

These are:-

“(a) The nature of the offence,

(b) Whether the granting of temporary release would constitute a threat to the community,

(c) The length of time spent in custody,

(d) The behaviour of the offender while in custody,

(e) The remainder of the sentence left to serve,

(f) Whether there are any compassionate grounds which merits special consideration”.

14. The letter stated that compassionate grounds were in practice limited to grave ill health or death of an immediate family member

and gave as the substantive reason for the refusal of temporary relief that it was too early in the sentence to grant it.

15. In my view this letter stated a rational policy based on criteria which the Minister was entitled to lay down and evidences a

decision rationally based on these criteria. The letter also advised the Applicant that the Minister had approved his transfer to the

Training Unit and suggested that he should work with therapeutic services including the probation service there “to combat your

reoffending behaviour”. These services, it was said, might then supply reports to the Minister which might be beneficial when the

Applicant’s case next came for review.

The criteria.

16. I do not consider that the criteria indicated by the Minister are in any way deficient. The principal attack on them was based on

the proposition that they were incompatible with the Council of Europe recommendation referred to above. A study of the

recommendations does not support the proposition advanced. They are expressed in general terms in the main and urge that prisoners

should be prepared for reintegration into the community by means of work with probation officers and social workers and the like. The

most specific recommendation relied upon, at paragraph 88 of the document is as follows:-

“In the case of those prisoners with longer sentences, steps should be taken to ensure a gradual return to life in society.

This aim may be achieved, in particular, by a pre-release regime organised in the same institution or in another

appropriate institution, or by conditional release under some kind of supervision combined with effective social support”.

(Emphasis added).

17. Apart from the fact that these recommendations are clearly not binding, it appears to me that they have in fact been complied

with in relation to the Applicant. There is uncontradicted evidence to the effect that the Training Unit attached to Mountjoy prison

provides a day release programme for prisoners who wish to attend workshops run by a voluntary organisation. The Applicant has not

applied for this programme. Equally, the Applicant has had “little or no contact” with the Probation and Welfare Service, on the basis

that he has indicated that “he did not need to work with them on his offending behaviour”. He has however been enabled to pursue

some six educational courses and his pre-release needs have been specifically considered by a conference involving the Governor,

Probation Officers and other staff. I am far from holding that the decision on this application would be different if these things had not

occurred but in light of the submissions made it is proper to record my view that, on the evidence, the Applicant’s post release

welfare has been seriously considered.

18. There is nothing whatever in the recommendations referred to which, either in its own terms or as a matter of law, creates a

presumption that the Applicant or any prisoner is entitled to temporary release.

Alleged discrimination.

19. The Applicant refers to his belief that a group of other prisoners are afforded temporary release on a structured programme. In

the case of such a prisoner serving a four year sentence, he says, this would come into effect one year before expiration of

sentence. In fact, an examination of the single document produced in support of this proposition shows that “short term and weekend

pre-releases” will come into effect six months before the expiration of the sentence, in the cases to which it applies. The Applicant

had not reached this stage in May 2000. Apart from this single document, which has plainly been removed from its context, there is

no specific evidence of the existence of an arrangement such as the Applicant describes. In any event, the essence of the temporary

release provision is that it is based on a consideration of the individual circumstances of a prisoner. I do not believe that any

discriminatory application of the relevant criteria has been established.

The High Court judgment.

20. The learned High Court judge dealt with this case by way of an ex-tempore judgment delivered shortly after the conclusion of

argument. It seems likely that he dealt with it in this way in the interest of expedition, having regard to the fact that the date for the

Applicant’s release was rapidly approaching. The judgment has to be read in the light of the arguments which had just concluded.

There is a clear finding that the letter of the 26th May set out the criteria which the Minister had applied and the reason for his

decision. There was a further finding that the reason had been stated with sufficient precision to put the Applicant in a position to

apply for judicial review. The judgment also distinguished between the letter of the 26th May and an earlier letter which, in the

learned judge’s view, did not contain sufficient in the way of reasons.

21. In the circumstances of the case I believe that an ex-tempore judgment was much in the Applicant’s interest: had judgment been

reserved the Applicant might not have been able to get his appeal on in this Court prior to the date of his release. An ex-tempore

judgment will naturally be less elaborate than a judgment supported by written reasons, but the judgment of the High Court in this

case clearly indicated the learned trial judge’s findings which were sufficient to justify the order which he made.

Conclusion.

22. I would dismiss the appeal and affirm the order of the learned High Court judge.