High Court refuses bail to convicted burglar pending enhanced remission hearing due to high risk and victim impact.

[2017] IEHC 549

THE HIGH COURT

JUDICIAL REVIEW

[2017 No. 675 J.R.]

BRIAN MCGINLEY

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 28th day of September, 2017

1. On the 13th February, 2005, the applicant committed an offence of aggravated burglary. This involved the invasion of a family

home by four masked men, including the applicant, the gang being armed with a sledge-hammer, baseball bat and other offensive

weapons. The offence involved threats of an extremely violent and sexually threatening nature being made. The father was

repeatedly assaulted and he and the grandfather were tied up. The mother, young children and a young cousin were falsely

imprisoned. It was part of the prosecution case that a knife from the kitchen was held to a child’s throat, although Mr. McGinley

demurred on this point. A safe containing a large amount of valuable personal property and a vehicle were stolen. The applicant was

identified through DNA, which was not available for the other perpetrators.

2. On 5th November 2010 the applicant was convicted and on 1st December, 2010, was sentenced to a period of ten years’

imprisonment, backdated to 5th November, 2010. The conviction was unsuccessfully appealed to the Court of Criminal Appeal (The

People (D.P.P.) v. McGinley [2014] IECCA 7) as subsequently was the sentence. No-one else appears to have been convicted in this

regard. The applicant has not co-operated with the prosecuting authorities in relation to identifying and prosecuting the other

perpetrators.

3. While in custody, the applicant received disciplinary notices on 16th March, 2012, 22nd June, 2012 and 21st July, 2013.

4. Where an applicant qualifies for enhanced remission, the rate of remission is one-third rather than the normal one-quarter. Thus

the applicant’s release date, if he had been entitled to enhanced remission was 5th July, 2017. The release date if normal remission

applies is 5th May, 2018. If the Minister (as he is in principle entitled to do) were to decide to hold the disciplinary notices against the

applicant such that the applicant would not qualify for remission at all, his release date would be 5th November, 2020.

5. The applicant applied for and was refused enhanced remission. The refusal was contained in a minute dated 18th July, 2017, from

the Operations Directorate of the Irish Prison Service to the Governor of Castlerea Prison, which set out the statutory criteria to

which the Minister is obliged to have regard.

6. The conclusion of the minute is that “The minister, having considered your application for enhanced remission, including all

materials supplied in support of the application and the matters outlined above has decided to refuse your application. While it is

acknowledged that you have engaged in some authorised structured activity, the Minister having had regard to the nature and

gravity of the offence to which the sentence of imprisonment being served relates, potential threat to the safety and security of

the public and the Garda view, is not satisfied that you are less likely to reoffend and are better able to re-integrate into the

community”.

Procedural history

7. On the 18th August, 2017, the applicant applied for leave to seek judicial review of that refusal to grant enhanced remission.

8. The statement of grounds challenging this conclusion sets out an embarrassing multitude of allegations in 38 separate numbered

grounds. Such a profusion of legal verbiage is difficult to square with the strictures of the judgment of MacMenamin J. in Babington v.

Minister for Justice and Equality [2012] IESC 65.

9. The reliefs sought in the statement are an order quashing the refusal decision, an order of mandamus requiring reconsideration of

the application, and various interlocutory reliefs.

10. When granting leave, McDermott J. cut down the application by giving leave only for the order of certiorari, and only on grounds

number 22 and 24 to 37 inclusive.

11. By motion dated 21st August, 2017, the applicant applied for an order admitting him to bail pending the determination of the

judicial review proceedings. That motion was returnable for, and heard on, 13th September, 2017, and forms the subject-matter of

this judgment.

An application for bail in an enhanced remission judicial review is misconceived.

12. There is a jurisdiction to grant bail in civil cases (see B.O. v. Minister for Justice Equality and Law Reform [2006] 3 I.R. 219 per

Herbert J.), but in my view it should only be exercised in a civil case which itself could lead to the release of the prisoner. It is one

thing to grant bail in say an Article 40 application, but the jurisdiction to grant bail is not a power to be exercised in relation to

proceedings regarding incidental matters where the ultimate order of the court is not going to be one directing release.

13. As Ní Raifeartaigh J. pointed out, very pertinently if I may respectfully say so, in the similar challenge brought in Bradley v.

Minister for Justice and Equality [2017] IEHC 422 at para. 54, “in reality, [the applicant] cannot get what he ultimately wants from

the Court in any event, namely a grant of enhanced remission. At best, he can have the existing decision quashed and the matter

remitted for decision again.”

14. That fundamental difficulty is, in my view, fatal to any application of the type presented here. Where the ultimate order of the

court in judicial review proceedings is, at best, the quashing of a refusal and a requirement to reconsider, it is simply not appropriate

for the court to grant by way of interlocutory bail order a relief that it would not grant at the substantive stage, namely the release

of the applicant. While it is true that, as Mr. Séamus Clarke B.L. (with Mr. Karl Monahan B.L.) for the applicant pointed out in the

course of an able submission, an applicant could be released on bail and then returned to custody after the determination of the

judicial review, it would be an improvident and inappropriate exercise of the discretion to grant bail in civil cases to exercise that

power in cases where the court would not in any event be granting release at the end of the judicial review, as to do so would lead

to a host of anomalies. Would the bail continue if the decision was quashed and remitted to the Minister? If so, there is nothing to

stop future applications and future challenges, the outcome being that one could stay at liberty as long as one kept litigating. That is

not the law. Nor is it a desirable or proper outcome. The application fails in limine.

Factors relevant to the exercise of discretion to grant bail

15. If I am wrong about the foregoing I will go on to consider the balance of factors as regards a grant of bail in a case of this kind.

In Arra v. Governor of Cloverhill Prison [2005] 1 I.R. 379, Clarke J. held that “The factors which should lead to the exercise of a

court’s jurisdiction in circumstances such as this [i.e. in a judicial review context] are wider than those that would apply in the case

of the grant of bail pending trial on a criminal charge” (p. 381). The applicant’s submissions here do not correctly decode this legal

language into practical terms. Having regard to a wider range of factors does not mean that bail should be granted in a wider range of

circumstances. If anything it means that there are a wider range of reasons, on balance, against release of a convicted person on bail

in a civil case.

16. Clarke J. pointed out that the presumption of innocence does not apply post-conviction and that “It is well established that

persons convicted upon trial by indictment are not … entitled to release pending an appeal. While there are, of course, cases where

persons have been admitted to bail pending appeal it would, I think, be fair to characterise same as being the exception rather than

the norm.”

17. The wider set of factors which were considered by Clarke J. in that case included that “A heavy weight in any consideration

needs to be given in favour of giving effect to a statutory provision” which benefits from the presumption of constitutionality where

that forms the subject of a challenge in the judicial review proceedings. While such a constitutional challenge is not involved in the

present case, the presumption of regularity and lawfulness as to administrative decisions is, analogously, relevant here, the onus of

proof in the judicial review proceedings being firmly on the applicant.

18. The second factor to which regard was had by Clarke J. as regards the non-constitutional grounds of challenge in Arra, was that

“it is, nonetheless, necessary to give some weight to the fact that the applicant is currently in prison on foot of an order of a court

of competent jurisdiction which is not manifestly ill-founded” (p. 384).

19. Reliance is placed on the discussion of this issue in Mark de Blacam’s textbook Judicial Review, 3rd ed. (Dublin, 2017) at p. 832,

where it is noted that “The factors governing the court’s discretion are not confined to those appropriate to an application pending

trial on a criminal charge” with Arra referred to in a footnote. However, de Blacam does not discuss Arra further and suggests his

own list of factors which perhaps unhelpfully do not include the two specific matters mentioned by Clarke J. in Arra.

What is the test for bail post-conviction?

20. The Court of Appeal in Doolan v. Ireland [2016] IECA 103 was prepared to proceed on the basis of the test set out in The People

(D.P.P.) v. Corbally [2001] I.R. 180, although Birmingham J. noted that the threshold might be higher where (as here) the bail

application was made outside the ordinary criminal appeal process. Corbally was applied in The People (D.P.P.) v. Whelan [2011] IECCA

96, another helpful authority in this context. At least in the absence of any developed submission that a higher test is applicable, I

will assume in favour of the applicant that the Corbally test applies. However there was some debate at the hearing about what that

test actually involves.

21. At p. 186 of Corbally Geoghegan J. proposed a grant of bail post-conviction where there is a “strong chance of success”. That

formula would suggest that a showing of a strong chance of success is a necessary ingredient in post-conviction bail. However, later

on in the same passage, he refers to the grant of bail where there is either a strong appeal or imminence of release or other special

circumstances.

22. I will assume in favour of the applicant that on a reading of the Corbally decision overall, a strong chance of success is not an

essential ingredient to post- conviction bail, and that other special circumstances such as imminence of release could justify this bail

in appropriate exceptional cases.

Is there a strong chance of success?

23. The major difficulty for the applicant is that judicial review against a refusal or when enhanced remission would only arise if it is

demonstrated that the decision is arbitrary, capricious or unjust (McKevitt v. the Minister for Justice, Equality and Law Reform [2015]

1 I.R. 216).

24. The parties agree that the McKevitt decision supersedes the previous case law, in particular the decision of Barrett J. in Ryan v.

The Governor of Midlands Prison [2014] IEHC 657 (reversed in any event on appeal to the Supreme Court, Ryan v. The Governor of

Midlands Prison [2014] IESC 54), and Farrell v. The Governor of Portlaoise Prison [2014] IEHC 392 (Hogan J.), which relied on the

(later reversed) reasoning in Barrett J.’s decision in Ryan. Dealing with the (pre-amendment) wording of r. 59(2) of the Prison Rules

2007, Hogan J. found that the Minister was required to release an applicant who engaged in authorised structured activity. Such an

interpretation is clearly at odds with the intention of the rule maker, and effectively edits out the discretionary nature of enhanced

remission (“the Minister may grant …” (emphasis added)). Furthermore, it assumes that likelihood of reoffending and of integration is

an all-or-nothing affair and that participation in activities designed to achieve those ends is automatically dispositive of a question of

whether the Minister can rationally be satisfied that the prisoner is less likely to re-offend and will be better able to re-integrate into

the community. The Ryan/Farrell approach in my view illustrates the perils and inconsistencies of semantic, even text-worshipping,

approaches such as literalism (or indeed originalism), and the necessity for a purposive interpretation as the predominant lens through

which any text should be viewed. In textual interpretation as in so many other matters, the overriding principle is that “the letter

killeth but the spirit giveth life”. Such an approach has long been recognised in constitutional law (see e.g., The People (D.P.P.) v.

O’Shea [1982] I.R. 384 at 436 per Henchy J.) but in a wider frame of reference is crucial to the interpretation of any legal instrument

and certainly any public law instrument. As Posner J. has pointed out extra-curially, “[a] legislature is thwarted when a judge refuses

to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text” (“The

incoherence of Antonin Scalia”, New Republic, 24th August), 2012; and as he emphasised more broadly in 2015 in an interview with

slate.com: “Justice Antonin Scalia’s dissent [in King v. Burwell 576 U.S. ___ (2015)] can be summed up in four words: “fiat justitia,

ruat coelum,” which means, roughly, do justice even if doing justice causes the heavens to fall. In other words, sever legal analysis

from consequences however great. That is a dangerous approach to law, and to government generally. Legal doctrine should in my

view be shaped with careful regard for consequences, especially where doctrine is flexible, as in the case of statutory

interpretation.” Translating to the rule-making context here, the legislator or rule-maker is thwarted when a judge refuses to apply his

or her handiwork in a manner consistent with its spirit and purpose. To try to impose a literal interpretation, when purposive

interpretations are available, is, in industrial relations terms, an undesirable form of judicial work-to-rule. To add an ingenuous-

sounding disclaimer that the legislator can always amend the law to make matters clear (i.e., to protect the legislative purpose

against being further thwarted by semantic interpreters such as oneself) is perhaps best described as an engagingly bold form of

judicial passive-aggression.

25. In this case, the spirit and purpose of the legislation is that rehabilitation is to be encouraged but early release through enhanced

remission is a matter for ministerial judgment and decision, not for the blunt edge of judicial micro-management of the rehabilitative

progress of the prison population, or for re-writing the rules by judicial interpretation to preclude the Minister from relying

predominantly or exclusively on “static” matters.

26. Mr. Clarke for the applicant relies essentially on three grounds to contend that there is a strong chance of success for the

contention that the decision is capricious, arbitrary or unjust.

27. Firstly he says that the Minister has focussed on “static” matters, particularly the nature and seriousness of the offence, rather

than placing weight on the rehabilitative activities undertaking by the applicant. This is a point of no substance whatsoever. The

weight to be attached to particular factors is entirely a matter for the Minister. The Minister is perfectly entitled to take the view on

a particular case that the seriousness of a particular offence is such that no matter what level of rehabilitative activities are

undertaken by a prisoner, an enhanced remission will not be granted. The Minister was entitled to put heavy emphasis on the nature

of the offence, and would have been entitled to refuse the application on that ground alone.

28. The next ground of challenge is a lack of detailed reasons. As held by Ryan P. in McKevitt, the refusal of enhanced remission is an

executive matter not administrative function (see also McLoughlin v. Governor of Wheatfield Prison [2017] IEHC 414, para. 26 per

Baker J.). When dealing with measures at the core of executive power (such as refusal of temporary release, parole or remission, or

the making of immigration decisions, to take some limited examples), the need for detailed reasons is considerably less and will arise

where for example an administrative decision interferes with a vested constitutional right. It seems to me that the argument that the

decision is invalid due to lack of detailed reasons is extremely weak.

29. Even if contrary to that view the argument had substance, the appropriate remedy in a context such as this would, it seems to

me, be an order requiring the provision of further more detailed reasons, rather than an order quashing the decision (see my decision

in RPS Consulting Engineers Ltd. v. Kildare County Council [2016] IEHC 113 paras. 107-111; Hurley v. Motor Insurers' Bureau of

Ireland [1993] I.L.R.M. 886; English v. Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605 para. 25).

30. A third ground of challenge to this decision is that because the applicant did not come to adverse Garda attention between his

original arrest in 2006 and his conviction in 2010, it would be irrational to rely on a Garda view adverse to enhanced remission, unless

perhaps that Garda view was formed in 2017 in the context of his recent application.

31. As it happens, Mr. John Gallagher B.L. for the respondent did not specifically indicate when the Garda view had formed. It seems

to me that in the context of a purposive interpretation of r. 59, the view would have to be informed in the context of any particular

application, for the simple reason that a view might vary depending on the circumstances presented in that application. Thus, it is

necessary for the Minister on receipt of any particular application for enhanced remission, to seek a Garda opinion on that specific

application, rather than in relying on a historic opinion expressed previously on file.

32. However the difficulty with the point in the factual context of this case is that the seriousness of the offence would have

warranted refusal of enhanced remission on its own. Reliance on other factors therefore has an element of surplusage about it.

33. In Bradley v. the Minister for Justice and Equality [2017] IEHC 422, Ní Raifeartaigh J. was of the view that a Garda opinion that an

applicant was very likely to re-offend was “capricious, arbitrary or unjust” if it involved “preferring a four year–old-newspaper report

quoting an anonymous source, over testimony of a Detective Garda and all of the efforts made by the applicant while in prison”

(para. 34). While one can readily understand the point being cogently made in that passage, if I may respectfully say so, I would

venture to suggest that it does not necessarily follow that because a person does not come to adverse attention during the pre-trial

period on bail that they have no likelihood of re-offending after release from prison. The two situations are not comparable, and there

is a particularly strong incentive for a person released on pre-trial bail to avoid their adverse attention because of the immediacy and

ease of revocation of bail and the prejudice that might be suffered to the pending trial as a result of their not being at liberty, not to

mention the potential prejudice at any putative sentencing hearing. Furthermore, the “efforts made by the applicant while in prison”

are a matter for the Minister, not the court, to assess.

34. The other possible qualification to the foregoing passage and the other reason why I consider that the quoted comments must be

viewed in the context of their own peculiar facts is that even if the Garda view in a particular case was irrational, it does not follow

that a ministerial decision which took account of that view is capricious, arbitrary or unjust in the McKevitt sense, particularly where

the Minister has other significant material on the basis of which it would be rational to decline the application.

35. Overall then, this is not a case where there is a strong chance of success. Analysing the prospects of success of a matter that is

yet to be heard calls to mind the aphorism attributed to Niels Bohr that prediction is very difficult, especially about the future; but if

one were to be compelled to predict the chances of success here they seem modest.

36. While the applicant has obtained leave for these judicial review proceedings, the threshold of arguability is not particularly high. It

follows from the foregoing discussion that while some of his points may be arguable, they are well short of substantial grounds for

contending that the Minister’s decision is arbitrary, capricious or unjust.

37. Indeed there are multiple factors emerging from the present application that make the Minister’s decision appear highly

reasonable.

38. Firstly, there is the seriousness of the offence (see Doody v. Governor of Wheatfield Prison [2015] IEHC 137, para. 26, per

Noonan J.).

39. Secondly, there is the fact that the applicant has come very late in the day to an expression of acknowledgement of guilt or

remorse.

40. Thirdly, having seen and heard the applicant in the witness box, I regard his evidence as generally minimising of his own role, and

at times somewhat evasive and self-serving. One does not need to be a psychotherapist to form the view that the applicant is a very

long way from arriving at a full understanding of the serious breach of fundamental human rights that he has committed against other

citizens. He comes across as very much at the foothills of engagement with that issue, and particularly eager to skip across the detail

of his crime.

41. In particular, the applicant’s cooperation with the authorities in the investigation and prosecution of the offence has been non-

existent. He was at all times in a position to make a statement to the Gardaí identifying the other perpetrators but of course did not

do so. Even in the rarefied confines of cross-examination in this bail application, he fenced and evaded a direct response on this

issue.

42. There was some conflict between his evidence and the affidavit evidence on behalf of the respondent (on which there was no

attempt to seek to cross-examine) as to his dealings with the psychology service in terms of an admission of guilt. In such

circumstances I am not obliged to, and do not propose to, resolve that issue in favour of the applicant merely because he gave oral

evidence, where the countervailing affidavit evidence was not effectively challenged (see the decision of the Supreme Court in

Koulibaly v. Minister for Justice, Equality and Law Reform [2004] IESC 50).

43. The applicant expressed some remorse in a letter to the Irish Prison Service, but denied in evidence that he did so to further his

application for enhanced remission. However the letter itself concludes by seeking to progress the enhanced remission application,

which lends a distinctly self-serving nature to the expression of remorse.

44. The applicant’s account of the crime and his role in it had the air of being significantly sanitised and whitewashed of detail, and he

put himself well away from many of the more egregious aspects of the crime. Overall, given the evasive manner and content of his

giving evidence, having seen and heard him, his evidence is not something on which I would rely generally, and particularly where it

conflicted with the evidence on behalf of the Minister. In particular I would prefer D/Garda Padraig Hession’s evidence having heard

and seen him in the witness box.

Does the imminence of release make bail appropriate?

45. The present application, as noted above, is brought during the interval between the date on which the applicant would have been

released if one-third remission applies and the date on which he might expect to be released if one-quarter remission applies. Thus

from his point of view there is a certain urgency to the matter, especially as we have now passed the former date. But imminence of

release, or alternatively phrased an imminent date upon which the proceedings “might be moot, is not without significantly more a

reason to grant bail.” Geoghegan J. refers to “other” special circumstances, implying that imminent release must be coupled with

special circumstances rendering it just to order post-conviction bail. In the absence of any strong chance of success, such

circumstances must indeed be exceptional, but there are no such circumstances here.

Are there other special circumstances warranting post-conviction bail?

46. Mr. Clarke valiantly relied on a host of other factors relating to this applicant including his family, his wife’s willingness to lodge an

amount of money, the fact that he is not perceived as a flight risk, and his compliance with bail for a long time pre-trial. However

none of these factors are exceptional and do not constitute special circumstances but in any event, nowhere remotely near the very

high threshold at which post-conviction bail would be appropriate.

The principle of continuity of custody leans against bail

47. Even if, contrary to the above, the applicant has satisfied the threshold for bail, meeting the threshold is not determinative as the

court has to consider all the circumstances in deciding whether to exercise the discretion (and in the post-conviction context it is a

discretion rather than a constitutional obligation) to grant bail. I would accept the submission of Mr. Gallagher that there are strong

penological reasons as to why a period of custody should be served in a single continuous block, rather than having the period

separated by a significant period of liberty. It would interfere significantly with any process of rehabilitation if this applicant were to

be required to return to prison in some months’ or years’ time following the failure of his judicial review. While I appreciate that the

applicant would prefer to take his chances, and be released now, that preference is not determinative. As the economist Thomas

Sowell has observed in another context, there are no solutions, only trade offs (see North East Pylon Pressure Campaign v. An Bord

Pleanála [2016] IEHC 300, para. 97). There is no perfect solution. In my view, requiring the applicant to remain in prison, while

attempting to expedite the hearing of his judicial review, is the least worst option.

The human rights of the victims of crime militate against the grant of post-conviction bail

48. Mr. Gallagher also relies on the human rights of the victims of Mr. McGinley’s offence, albeit that the victim’s directive (directive

2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime ensures that persons who have

fallen victim of crime are recognised, treated with respect and receive proper protection, support and access to justice) is not

directly on point. But the rights of victims are not confined to the directive and have been recognised in the ECHR context in many

cases such as X and Y v. the Netherlands (Application No. 8978/80, European Court of Human Rights, March 26th 1985) and

Söderman v. Sweden (Application No. 5786/08, European Court of Human Rights, 12th November, 2013) para. 88. In the present

context, Mr. Gallagher’s submission is that where victims are anticipating an expected release date, that is a material factor to be

taken into account in deciding whether to grant post-conviction bail that would put the offender back on the street well in advance

of the date notified to victims. That is only a matter of common sense and is again a factor leaning against bail in a context such as

this, albeit not one that makes a difference to the outcome here given the other matters already discussed above that lead to the

same conclusion.

Order

49. The foregoing having been said, it is nonetheless all to the good that the applicant has engaged in rehabilitative activities. Those

activities must have a value to society and to the applicant for their own sake in and of themselves, above and beyond any utilitarian

value in advancing his application for enhanced remission. Otherwise what is happening is not rehabilitation but gaming the system.

Contrary to the erroneous approach taken by Barrett J. in Ryan and Hogan J. in Farrell, there is no necessary read-across between

rehabilitative activity and a grant of enhanced remission. The Minister still has a role in assessing risk and in exercising a discretion

(see the very pertinent comments of Professor Mary Rogan in Prison Law (Dublin, 2014) at p. 121), which has been done in this case

on what seems thus far likely to be a reasonable basis. That does not take away the value of the applicant’s rehabilitative activities,

but it underlines the fact that such activities must be engaged in for their own sake, and not for utilitarian, instrumental, tactical or

forensic purposes.

50. For the foregoing reasons I will order:

(i). that the application for the applicant’s admission to bail be refused;

(ii). that the matter be put into the judge’s list on 10th October, 2017 for the purpose of applying for an early hearing

date, and that subject to hearing counsel, opposition papers should be delivered by 9th October, 2017; and

(iii). that there be a recommendation for the payment of the applicant’s costs under the Legal Aid (Custody Issues)

Scheme. In that regard, as noted earlier, the applicant was ably represented by two junior counsel in the present

application and as their assistance was particularly helpful I will direct that the recommendation will include solicitors and

two junior counsel.