High Court dismisses judicial review for late challenge to prison transfer refusal citing procedural time limits.

APPROVED

AN ARD-CHÚIRT

THE HIGH COURT

[2025] IEHC 671

Record No. 2024/3JRP

BETWEEN/

PAUL O’BEIRNE

APPLICANT

AND

THE MINISTER FOR JUSTICE AND THE IRISH PRISON SERVICE

RESPONDENTS

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

NOTICE PARTY

JUDGMENT of Mr. Justice Conleth Bradley delivered on 28th November 2025

INTRODUCTION

Preliminary

1. This is the Applicant’s challenge to a refusal on behalf of the Minister for Justice (“the Minister”) to transfer him from prison in Wheatfield Prison to an open prison or temporary release to the Community Return Scheme. The refusal decision which was initially sought to be challenged was contained in correspondence sent to the Applicant from Mr. John Twaddle, Operations Directorate of the Irish Prison Service dated 22nd February 2024.

2. On 1st June 2019, the Applicant was convicted and sentenced for nine years for the offence of facilitating the commission of a serious criminal offence by a criminal organisation, contrary to section 72 of the Criminal Justice Act 2006. The conviction arose out of the Applicant’s provision and disposal of a vehicle used by a criminal organisation in the commission of an offence being the murder of Vincent Ryan on 29th February 2016.

3. The Applicant currently has a remission date of 28th February 2026.

4. The Statement of Opposition is grounded upon the affidavit of Mr. John Twaddle, sworn and filed on 27th January 2025. The following is averred to by Mr. Twaddle in his Affidavit.

5. The Applicant met with Mr. Twaddle, Assistant Principal Officer in the Operations Directorate of the Irish Prison Service on a number of occasions to deal with his request that he be considered for transfer to an open prison facility. His first meeting with Mr. Twaddle was on 18th September 2023. A review meeting in relation to that request was held on 17th October 2023. A further meeting took place between Mr. Twaddle and the Applicant at Wheatfield Prison on 14th November 2023.

Meeting at Wheatfield prison on 14th November 2023

6. At their meeting at Wheatfield Prison on 14th November 2023, Mr. Twaddle states that he informed the Applicant that although the possibility of a transfer to an open prison was discussed at the review meeting on 17th October 2023, it was decided that no such positive recommendation would be made to the Minister.

7. Mr. Twaddle avers that at the meeting on 14th November 2023 he informed the Applicant that no such recommendation was made due to the nature and gravity of the offence for which he was serving his sentence, the threat to the safety of the public, and the Garda view. He states that in the context of the nature and gravity of the offence, he informed the Applicant that the offence related to a gangland murder. He states that in relation to the threat to the safety of the public, he informed the Applicant that if he was to be transferred to an open prison in circumstances where his life was under threat, this would have consequences for the safety of other prisoners, staff and members of the public.

8. In relation to the third matter, the Garda view, Mr. Twaddle states that he informed the Applicant that the Garda view constituted one of the reasons why no positive recommendation was made. He states that the Garda view originated from two responses to questionnaires sent by the Operations Directorate of the Irish Prison Service to An Garda Síochána, the first request for information was replied to on 21st July 2017 and the second request for information was replied to 20th September 2019. Mr. Twaddle states that the information was provided by two distinct named members of An Garda Síochána.

9. Mr. Twaddle avers that the Applicant was not informed of the contents of the Garda view, and he asserts public interest privilege over the contents of the Garda view in circumstances where he states that it was necessary to preserve the confidentiality of this information so as to preserve the channels of communication between the Irish Prison Service and An Garda Síochána. Mr Twaddle states in this regard that if the Irish Prison Service was hindered in its ability to receive confidential information from An Garda Síochána or if An Garda Síochána was forced to become circumspect in what information it provided, it could have serious safety issues both within the prison and the community.

10. Mr. Twaddle states that during the course of this meeting on 14th November 2023, the Applicant confirmed that he was aware that his request to be transferred to an open prison was refused as no recommendation was made to the Minister for Justice. He states that as a result of the meeting the Applicant confirmed to him that he had clear understanding of the situation.

Letter dated 20th November 2023

11. It appears that on 20th November 2023, Mr. Donal O’Gallachoir of the transparency team of the Department of Justice wrote to the Applicant in the care of Wheatfield Prison in relation to “Minister’s reference: – DJE-MO-09805-2023” in response to a communication from the Applicant.

12. Whilst I will return to this correspondence later in this judgment, it stated as follows:

“Dear Mr O’Beirne,

I refer to your recent letter to the Department of Justice which was received on 4th November, 2023. Transfer requests are an operational matter for the Irish Prison Service (IPS) for which neither the Minister nor the Department have any role or involvement. It is open to you to speak with the Governor on governor’s parade each weekday morning to discuss your sentence management and related matters. To be of assistance, I have relayed your correspondence to the IPS for its information. I trust the above information clarifies matters.”

Letter dated 22nd February 2024

13. In addressing the preliminary objection/time point which is raised on behalf of the Respondents, it is submitted on behalf of the Applicant that the decision which he seeks to challenge was first formally communicated to him in writing in the letter dated 22nd February 2024 from Mr. John Twaddle, Operations Directorate of the Irish Prison Service.

14. This letter was sent to two parties: “(1) The Governor – to see and transmit” and “(2) Paul O’Beirne, 107431- to see”, i.e., the Applicant.

15. The letter dated 22nd February 2024 stated as follows:

“Dear Mr O’Beirne,

I refer to our meeting under Rule 57, and also correspondence received from yourself requesting to transfer to an open prison or temporary release to the Community Return Scheme. As you are aware you are serving a sentence of 9 years for facilitating the commission of a serious criminal offence by a criminal organisation contrary to the provisions of section 72 of the Criminal Justice Act, 2006. As you may be aware, the Parole Board was established as a statutory body under the Parole Act 2019 on 31st July 2021. This replaced the former Interim Board which had been in place since 2001. Its principal function had been to advise the Minister for Justice in relation to the administration of long-term prison sentences serving an imprisonment for life and those serving a determinate sentence of eight years or more. At present, the provisions of the Parole Act 2019 apply only to those serving a sentence of imprisonment for life. To date, no regulations have been made pursuant to section 24 (3) of the Parole Act 2019 to provide for the eligibility of those serving a sentence of eight years or more. Such prisoners are currently being managed on an administrative basis by the Irish Prison Service. As a result, approval for transfer to an Open Prison requires that a submission with a positive recommendation be made to the Minister for Justice who makes the ultimate decision in such cases. Transfers to closed prisons for such prisoners do not need to be referred to the Minister. As advised at our meeting, your request to transfer to an Open Prison was given very careful consideration. A decision was made to refuse same owing to the nature and gravity of offence, threat to public safety, and the Garda view. You are not eligible for temporary release to the Community Return Scheme as this scheme applies to prisoners serving sentences between

18 months and 8 years.

Your case is listed for review again in October 2024. I would

encourage you to make every effort to engage with prison management and services in a positive way to reduce your factors for re-offending as you prepare for your release”.

16. On 29th April 2024, the Applicant completed a pro forma ‘Statement required to ground an application for judicial review by a personal applicant’ (“Statement of Grounds”), wherein he stated that the grounds of relief sought were alleged mental torture, abuse of process and abuse of jurisdiction. He confirmed that the facts set out in the Statement of Grounds were true to the best of his knowledge, information and belief in an Affidavit also sworn on 29th April 2024.

17. This appears to have accompanied a hand-written letter from the Applicant to the court which comprised some six pages.

18. This application was the subject matter of an ex tempore judgment of the High Court (Mr. Justice Oisín Quinn) in O’Beirne v The Minister for Justice & Ors (unreported, ex tempore, the High Court (Quinn J.), 13th May 2024).

19. In that judgment, the High Court set out the background to the matter as follows:

“(1) The Applicant is currently detained as a prisoner in

Wheatfield Prison serving a prison sentence of nine years. The

Applicant is unrepresented and has applied for leave to

commence a judicial review against the Minister for Justice, the

Garda Commissioner and the Irish Prison Service concerning

a decision by the Minister for Justice to refuse the Applicant’s application to be transferred from Wheatfield Prison to an open prison.

(2) That decision is described in a letter of John Twaddle of the IPS dated 22nd February 2024. The application is grounded on an Affidavit the applicant swore on 29th April 2024 and the papers include a Statement of Grounds.

(3) The applicant states inter alia ‘I bring this judicial review in order for the court to make a decision as to whether or not I am deserving of a place in an open prison environment, and, if so, to compel my immediate transfer.’

(4) It seems that the question of whether or not a prisoner

serving a sentence of more than eight years (but not life) such

as Mr O’Beirne be allowed transfer to an open prison is dealt

with on an ‘administrative basis’ by the Irish Prison Service; see the letter of John Twaddle of the IPS of 22 February 2024.

(5) This letter states that the reasons for refusing Ms O’Beirne were ‘the nature and gravity of the offence, threat to public safety, and the Garda view.’”

20. In granting leave to apply for judicial review on the low threshold of arguability Quinn

J. observed inter alia that “While Mr O’Beirne makes a number of complaints not all of which are entirely clear, I am satisfied that there is an arguable case here”.

21. Quinn J. then set out the reasons why he was granting the initial leave application as follows:

“(7) Firstly, the scheme is administrative and operated by the IPS with input from An Garda Síochána and the ultimate decision is, apparently, made by the Minister for Justice. Therefore, the decision-making process and the scheme is arguably one amenable to judicial review.

(8) Secondly, the decision has arguably affected him and his rights; not being entitled to be transferred to an ‘Open Prison’.

(9) Thirdly, in those circumstances, he has arguable grounds as to whether he is entitled to reasons for that decision: Mallak v Minister for Justice [2012] 3 I.R. 297.

(10) Next, he has an arguable case as to whether he has been given reasons or whether he can know the reasons enough to know whether he should challenge them. For example it is not clear, arguably, what the ‘Garda view’ means as a reason.

(11) In terms of timing, he is within the three months from the date of Mr Twaddle’s letter.”

22. In the circumstances, therefore, Quinn J. granted the applicant leave to seek orders of certiorari of the decision of the Minister of Justice, on the recommendation of the IPS and/or An Garda Síochána, referred to in the letter from the IPS dated 22nd February 2024 to refuse to grant his application for transfer to an open prison.

23. Quinn J. also noted his recommendation that the Applicant be granted legal aid under the Legal Aid – Custody Issues Scheme.

24. The Statement of Opposition on behalf of the Respondents (which included a preliminary objection in relation to time and Order 84, rule 21 of the Rules of the Superior Courts 1986, as amended (“the RSC 1986”) was dated 23rd January 2025 (and date-stamped 27th January 2025) and this was verified by the Affidavit of John Twaddle, Assistant Principal Officer in the Operations Directorate of the Irish Prison Service which was sworn on 23rd January 2025. In this Affidavit, for example, at paragraphs 25(a) to (j), Mr. Twaddle addresses, paragraph by paragraph, the matters raised in the Applicant’s handwritten letter.

DISCUSSION & DECISION

The preliminary objection

25. The Respondent’s preliminary objection can be simply put.

26. It is pointed out that the decision on behalf of the Minister to refuse the Applicant’s request for transfer to an open prison, and the reasons for same, was communicated orally to him at his meeting with Mr. Twaddle on 14th November 2023. Accordingly, it is submitted that the Applicant’s application for judicial review, which issued on 29th April 2024, has failed to comply with the requirements of O. 84, r. 21(1) of the RSC 1986 which requires that an application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose. Aside from legal arguments in submissions made on his behalf, the Applicant did not apply for an extension of time when seeking leave to apply for judicial review and has not sought to set out on Affidavit that there was, for example, a good and sufficient reason for allowing an extension of time or that the reason(s) for the Applicant missing the deadline were outside of his control or could not reasonably have been anticipated by him.

27. It appears that the Applicant instituted his judicial review application on 29th April 2024 and the amended procedure for making an application for judicial review prescribed in S.I. No. 163 of 2024 came into operation, some days earlier, on 26th April 2024. This had the effect of amending O. 84 of the RSC 1986 by providing that the three-month time period within which an application for judicial review must be made stops when the notice and affidavit required by O. 84, r. 20(2)(a) and (b) of the RSC 1986 are filed in the Central Office, or, in cases of urgency, the Court.

28. Whilst I accept Mr. Twaddle’s detailed account of the meeting which he had with the Applicant on 14th November 2023, where, for example, he explained – again in some detail – the basis and reasons for the decision to refuse the Applicant’s request for a transfer to an open prison, I do not consider, for the following reasons, that I should dismiss the Applicant’s case in limine or in a preliminary manner, without addressing the other matters raised in this application for judicial review. Rather, I consider that it is preferable to consider the Applicant’s non-compliance with O. 84, r. 21(1) of the RSC 1986, as a factor in the exercise of my overall discretion in what is a supervisory jurisdiction.

I do this for the following reasons: first, the initial leave application was made personally by the Applicant, as a prisoner (without having, at that time, the benefit of advice from solicitor and counsel) and on an ex parte basis. The order of the High Court granting leave on 13th May 2024, and the ex tempore judgment of the High Court on the same date, confirms that the application for leave to apply for judicial review assumed that the decision which was sought to be impugned, was that contained in Mr. Twaddle’s letter on behalf of the IPS and dated 22nd February 2024; second, it was noted at paragraph (11) of the ex tempore judgment of the High Court granting leave that “[i]n terms of timing”, the Applicant was “within 3 months from the date of Mr.

Twaddle’s letter.” Accordingly, based on the facts then presented before the Court which was, of course, was an ex parte application, the application appeared to be within time; third, shortly after his meeting with Mr. Twaddle on 14th November 2023, the Applicant received a letter from the Transparency Team of the Department of Justice dated 20th November 2023 (which I have referred to earlier in this judgment). To recap, it stated inter alia that “Transfer requests are an operational matter for the Irish Prison Service (IPS) for which neither the Minister nor the Department have any role or involvement.

It is open to you to speak with the Governor on governor’s parade each weekday morning to discuss your sentence management and related matters. To be of assistance, I have relayed your correspondence to the IPS for its information.” This letter, on an initial read, does appear somewhat ambiguous although Ms. Lawlor SC’s explanation, on a more considered view, would seem to be correct. Accordingly, the letter of 20th November 2023 appears to be a response to the Applicant which redirects the Applicant to the IPS. The reference to ‘transfer requests’ being an ‘operational matter’, in the sense of the administration of these matters, was for the Irish Prison Service (IPS) and it is suggested that Mr.

O’Gallachoir could not be construed to be saying that the ultimate transfer decision was not a matter for the Minister.

29. Further, and separately, in terms of the Applicant’s handwritten application, under the sub-heading “Appended”, which appears to follow after his initials, beginning with the sentence “During writing this [action] on 26/02/24, I received a letter from John Twaddle-please find copy enclosed” suggests that the previous four pages (which ended with the Applicant’s initials) appear to have been written prior to 26th February 2024.

30. In all the circumstances, and having regard to the decision of the Court of Appeal (Faherty, Butler and Hyland JJ.) in B v The Chief Appeals Officer [2025] IECA 138 (the judgment of the Court being delivered by Hyland J.) which addressed the general requirement to seek an extension of time at the ‘leave’ stage, it is more appropriate that I consider this issue as part of my overall discretion.

31. Accordingly, the Applicant’s challenge in this judicial review application as reflected in paragraph (1) of the Amended Notice of Motion date stamped 18th November 2024 seeks an orders of certiorari quashing the decision of the Minister for Justice (on the recommendation of the IPS and/or An Garda Síochána) referred to in the letter from the IPS of 22nd February 2024 to refuse to grant the Applicant’s application for a transfer an Open Prison. Having regard to the following matters, including: (i) the nature of the transfer scheme at issue in these proceedings; (ii) the standard of review; and (iii) the law on reasons, I consider, that the decision communicated on behalf and with the authority of the Minister dated 22nd February 2024 to refuse to grant the Applicant’s request and application for a transfer to an open prison, was lawfully made. I now address each of these matters.

Transfer Scheme

32. The Prison Rules 2007 are contained in S.I. No.25/2007-Prison Rules 2007. The applicable Rule in the Applicant’s case, Rule 57, deals with a prisoner’s meeting with an officer of the Minister and the meetings which were held between Mr. Twaddle and the Applicant have been set out earlier in this judgment.

33. Rule 57(1) of the Prison Rules, for example, provides that “a prisoner may make a request, in writing, to the Governor to meet with an officer of the Minister (other than the Governor, a prison officer or any other person working in the prison) and the Governor shall, upon receipt of such request, forward the request without undue delay to the Director General” and Rule 57(2) provides that “[a]n officer of the Minister, designated by the Director General, shall, as soon as is practicable, visit the prisoner and hear any request or complaint which the prisoner may wish to make.”

34. Rule 57 does not prescribe the procedures involved and can be contrasted, for example, with Rule 59 which deals with remission (particularly enhanced remission). Rule 59 has no application in this case.

35. Applications for transfer, such as that at issue in this case, are considered pursuant to the Irish Prison Service Open Centre Policy which is dated 4th November 2019 (Policy Inex No. PIN-047) as part of an administrative scheme operated by the IPS on behalf, and with the authority, of the Minister.

36. According to section 17(3) of the Criminal Justice Administration Act 1914 (as adapted by section 11 of the Adaptation of Enactments Act 1922) “Prisoners shall be committed to such prisons as the (Minister for Justice and Equality) may from time to time direct and may on the like direction be removed therefrom during the term of their imprisonment to any other prison.”

37. The transfer of a prisoner involves, for example, a determination about where a prisoner should be housed and it is perhaps not surprising that the case law emphasises the limitations of judicial intervention in such a decision-making process. In Dempsey v Minister for Justice [1994] 1 I.L.R.M. 401, at 405 Morris J. (as he then was) described the exercise of ministerial discretion in respect of prisoner transfers as “very wide” and “conferred in the broadest possible terms” and held that the exercise of the discretionary power in that case could not be fettered by any legitimate expectation claimed by a prisoner (applying Tara Prospecting v Minister for Energy [1993] I.L.R.M. 771 at 789.)

38. The sub-heading at paragraph (4.2) of the ‘Open Centre Policy Document’ dated 4th November 2019 addresses “(4.2) Consideration of transfer” and states as follows:

“A prisoner who is to be considered for an Open Centre shall have his sentence management plan reviewed at the Prisoner Review Meeting where all relevant services can have an input into the decision making process. For prisoners with short sentences or those committed for certain offences (e.g. non-violent first time offenders) the necessity of reviewing them at a formal Review Meeting may not be necessary. Transfer will be approved or refused by Operations Directorate using the following criteria:

4.2.1 Nature of sentence/offence

4.2.2 Length of sentence and length of sentence left to serve. Transfer on Committal of certain categories of offenders who do not require a medium security setting.

4.2.3 Risk of absconding

4.2.4 Risk to the public

4.2.5 Medical restrictions

4.2.6 Risk to self

4.2.7 Outstanding charges or court appearances

4.2.8 Recommendation from Governor or Prison Services

4.2.9 Behaviour in prison

4.2.10 Previous behaviour in an open centre

4.2.11 Garda view on offender’s behaviour in the community

4.2.12 Manner and extent which the prisoner has engaged

constructively with services

4.2.13 Any offence for which person was previously convicted of.

These criteria are not exclusive or definitive and may vary depending on the particular circumstances of each case”.1

39. Insofar as it is contended, on behalf of the Applicant, that there was no evidence that the Respondents considered the behaviour of the Applicant, and that he had engaged positively with the rehabilitation programme in order to reintegrate into society, the factors outlined are non-statutory and non-binding and can be contrasted with, for example, the matters which the Minister considers when addressing an application for enhanced remission in Rule 59(2)(f) of the Prison Rules 2007. Further, the Respondents were entitled to base their decision on the factors which it outlined and explained to the Applicant (on at least two occasions) and there is no breach of Article 41 of the EU Charter of Fundamental Rights or any breach of fair procedures. Accordingly, consistent with the prescription that the criteria are not exclusive or definitive and may vary depending on the particular circumstances of each case, in his Affidavit sworn on 23rd January 2025, Mr. Twaddle (an official in the Operations Directorate of the Irish Prison Service) confirms that the decision in the Applicant’s case not to make a positive Emphasis/underlining added in this judgment.

recommendation to the Minister for Justice was based on the detailed reasons, which he had previously informed the Applicant at their meeting on 14th November 2023 and which was further referenced in the correspondence dated 22nd February 2024, and that he had “regard to the Open Centre Policy Document (4 November 2019), which envisages that the “Nature of sentence/offence”, “Risk to the public”, and “Garda view of an offender’s behaviour in the community” are amongst the factors to be taken into account when reaching such a decision” and he refutes any suggestion that the decision to refuse to make the relevant recommendation was arbitrary, capricious, and/or unjust.

40. Although during the hearing, there was some uncertainty in terms of the process of ‘recommendation’ and ‘decision’ and the precise procedure involved, these were not raised as grounds of review and it appears to be common case that Mr. Twaddle was in fact communicating the decision of the Minister, and on the authority of the Minister, to refuse the Applicant’s application for a transfer to an open prison. I will leave to a future case, where this matter may be enjoined as an issue in a legal challenge, the detail of the precise relationship between the proposer and the recipient of a recommendation. The principal focus of the Applicant’s challenge was on the decision to refuse his application and request for transfer to an open prison and in this regard particular attention was focused on the decision communicated in the letter dated 22nd February 2024 (and on the recommendation of the IPS and An Garda Síochána) to refuse to grant the Applicant’s application for a transfer to an open prison. However, it is important to have regard to the entire context of the Applicant’s engagement with the IPS in his request for a transfer which includes the meeting with Mr. Twaddle on 14th November 2023 and his communication with the Applicant as to the reasons why his request for a transfer was refused.

Standard of review

41. The authorities also indicate that the standard of review in questions around the transfer of prisoners is whether the decision which is sought to be impugned was “capricious, arbitrary or unjust” and not whether, for example, I would have reached a different

decision to that communicated either on 22nd February 2024 or 14th November 2023: see the decision of the High Court (Meenan J.) in Lyons v The Governor of Shelton Abbey & Ors [2019] IEHC 426 at paragraph 16, the decision of the High Court (Ní Raifeartaigh J.) in Bradley v Minister for Justice & Equality & Ors [2017] IEHC 422 at paragraph 8, and the decision of the High Court (Kearns P.) in Nash v The Chief Executive of the Irish Prison Services & Others [2015] IEHC 504. I do not consider that either the decision of 22nd February 2024, or the meeting and communications on 14th November 2023, could be described in any way as capricious, arbitrary or unjust or that either contained any exceptional basis which warrant judicial intervention.

Reasons

42. The requirement to give reasons as outlined in the judgment in Connelly v An Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453, and related case law, sets out that as an adjunct to the requirement of fair procedures, a recipient of a

decision should be able to understand how their arguments were addressed by the

decision-maker and to allow that person and their legal representatives to assess the validity and correctness of the process. Of importance, when assessing this issue, is the level of participation or engagement by the recipient of the decision. Earlier in this judgment, I set out the details of the meeting between the Applicant and Mr. Twaddle on 14th November 2023 where Mr. Twaddle explained, in some detail, why the Applicant’s request for transfer to an open prison was refused due to the nature and gravity of the offence for which he was serving his sentence, the threat to the safety of the public, and the Garda view, and he further explained his views in relation to each of these matters.

43. The detail of this meeting on 14th November 2023 was followed up by a letter dated 22nd February 2024 to the Applicant. The letter inter alia stated, as the Applicant was aware, that he was serving a sentence of 9 years for facilitating the commission of a serious criminal offence by a criminal organisation contrary to the provisions of section

72 of the Criminal Justice Act 2006 and the requests for transfer to an open prison from prisoners serving a sentence of eight years or more was being managed on an administrative basis by the Irish Prison Service. The Applicant was further informed that, as a result, approval for transfer to an open prison requires that a submission with a positive recommendation be made to the Minister for Justice who makes the ultimate

decision in such cases. The Applicant was informed that as advised at his meeting with Mr. Twaddle, his request to transfer to an open prison was given very careful consideration and that a decision was made to refuse same owing to the nature and gravity of offence, threat to public safety, and the Garda view. The Applicant was further informed that he was not eligible for temporary release to the Community Return Scheme as it applied to prisoners serving sentences between 18 months and 8 years and his case was listed for review again in October 2024.

44. The explanations set out in the meeting between Mr. Twaddle and the Applicant on 14th November 2023 and the letter dated 22nd February 2024 satisfied the requirements in relation to reasons set out in the judgment of the Supreme Court in Connelly v An Bord Pleanála [2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453, where at paragraph (84) of his judgment, Clarke CJ. observed, for example, that “[t]here is a middle ground between the sort of broad discursive consideration which might be found in the judgment of a court, on the one hand, and an entirely perfunctory statement that, having regard to a series of factors taken into account, the decision goes one way or the other. There is at least an obligation on the part of decision-makers to move into that middle ground, although precisely how far will depend on the nature of the questions which the decision-maker had to answer before coming to a conclusion.”

45. In assessing the reasons in this case, the details and explanation at the meeting which occurred on 14th November 2023 and the follow-up letter dated 22nd February 2024 have to be considered together. In addition the Applicant was uniquely aware of the factors to be considered, as a person convicted of certain crimes, and was therefore participating and engaged in the process of seeking a transfer and the matters which the IPS had to consider as set out in the Open Centre Policy Document, three of which were further explained at the meeting on 14th November 2023 and referenced in the letter from Mr. Twaddle dated 22nd February 2024 namely that a decision was made to refuse his request to transfer to an open prison owing to “the nature and gravity of the offence, threat to public safety, and the Garda View”. To recap, at the meeting on 14th November 2023, Mr. Twaddle had explained to the Applicant that in the context of the nature and gravity of the offence, the offence related to a gangland murder. In relation to the threat to the safety of the public, Mr. Twaddle informed the Applicant that if he was to be transferred to an open prison in circumstances where his life was under threat, this would have consequences for the safety of other prisoners, staff and members of the public. Mr. Twaddle further informed the Applicant that the Garda view constituted one of the reasons why no positive recommendation was made and that this originated from two distinct responses to questionnaires sent by the Operations Directorate of the Irish Prison Service to An Garda Síochána, the first request for information was replied to on 21st July 2017 and the second request for information was replied to 20th September 2019.

46. Further and given the nature of the matters involved and the paramountcy of maintaining confidentiality in the exchange of communications between the Gardaí with the IPS, the consideration of criteria ‘4.2.11 Garda view on offender’s behaviour in the community’, comprising two separate replies to requests for information on 21st July 2017 and on 20th September 2019 and not informing the Applicant of the contents of the Garda view in these replies, was, in my view, appropriate, proportionate and a necessary corollary of the assertion of public interest privilege and confidentiality over the exchange of such communication between the IPS and An Garda Síochána.

47. It is noted that in Bradley v Minister for Justice & Equality & Ors [2017] IEHC 422, the High Court (Ní Raifeartaigh J.) observed at paragraph 7 of her judgment “that some of the matters are ‘static’ or incapable of being changed by the prisoner, being events or facts which have taken place in the past (such as the previous convictions of the prisoner, or the nature and gravity of the offence for which he is currently serving imprisonment)”.

48. In terms of reasons, the Applicant was also enabled, arising from the details of the meeting which occurred on 14th November 2023 in addition to the letter dated 22nd February 2024, to assess whether or not he should challenge the decision to refuse his request for transfer to an open prison.

49. By the meeting of 14th November 2023 and the letter dated 22nd February 2024, the Respondents satisfied the requirement to give reasons why the Applicant’s request for transfer to an open prison had been refused.

50. For the reasons set out, I refuse this application for judicial review.

51. In the exercise of my discretionary jurisdiction, I also consider, in addition to the above reasons for refusing the Applicant’s application for judicial review, that there has been a failure of the Applicant to comply with the time limits and other provisions prescribed by O. 84, r. 21 of the RSC 1986. Mr. Twaddle had, for example, explained to the Applicant in a detailed manner, at their meeting on 14th November 2023, the basis and reasons for the decision to refuse the Applicant’s request for a transfer and this was referenced in the letter of 22nd February 2024. The entire context, therefore, has to be considered. This is a classic example of the situation described by the High Court (Binchy J.) in Enev v Dublin City Council [2018] IEHC 73 in applying the decision of the High Court in Finnerty v Western Health Board [1998] IEHC 143, where Carroll J. had observed that “a decision which is a reiteration of a previous decision is not a new

decision. Time therefore begins to run when the final decision is first made.” The Court in Enev also referred to O. 84, r. 21 of the RSC 1986 and observed that “No application was made for an extension of time and nor were any reasons given as to why the application was not made in time” and that the application had been brought out of time in that case also.

CONCLUSION

52. Accordingly, for the reasons set out in this judgment, I refuse the Applicant the reliefs sought by way of judicial review.

PROPOSED ORDER

53. I propose to make an order refusing the Applicant the reliefs sought by way of judicial review.

54. As in the previous orders of the court, including on 13th May 2024 and 4th November 2024, I likewise recommend the application of the Legal Aid-Custody Issues Scheme to cover the retention by the Applicant of the services of solicitor, junior counsel and senior counsel in this judicial review application and the payment of the costs incurred.

55. In the event that any of the parties wish to raise any ancillary or consequential matters arising from this judgment, a date can be arranged by the respective solicitors for the parties contacting the Court Registrar.

APPEARANCES

56. John F. Hayden SC and Patrick O’Sullivan BL appeared for the Applicant instructed by Daniel Kreith Solicitor.

57. Anne-Marie Lawlor SC and Diarmaid O’Leary BL appeared for the Respondents instructed by the Chief State Solicitors Office.

CONLETH BRADLEY

28th November 2025