BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Lynch v. Minister for Justice, Equality and Law Reform & Ors [2001] IEHC 241 (26 March 2001) URL: http://www.bailii.org/ie/cases/IEHC/2001/241.html Cite as: [2001] IEHC 241 |
||
[New search] [Printable RTF version] [Help]
THE HIGH COURT
No 2000 417 JR
BETWEEN
KEVIN LYNCH
Applicant
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE GOVERNOR OF PORTLAOISE PRISON AND THE PAROLE BOARD
Respondent
JUDGMENT delivered by Mr. Justice Herbert on the 26th day of March 2001
Mr. Kevin Lynch seeks Judicial Review by way of an Order of Mandamus directing the Minister for Justice, Equality and Law Reform, the Governor of Portlaoise Prison, and the Parole Board to grant his application for temporary release. He claims that the failure to grant him such temporary release is a denial of a fundamental right guaranteed to him by Article 34, Article 38(1) and Articles 40-44 of the Constitution of Ireland, 1937; by (he Universal Declaration of Human Rights, the European Convention on Human Rights and Fundamental Freedoms and by various other International Instruments. In my judgment a prisoner has no constitutional or inherent right to early release from prison or to temporary release. This is clear from the decision of Mr. Justice Murphy in the case of Ryan -v- The Governor of Limerick Prison {1988) I.R. 198 at 200; of Mr. Justice Johnson in Sherlock -v-The Governor of Mountjoy Prison (1991) 1 I.R. 451 and of the Supreme Court of the United States of America in Greenholtz -v- Nabraska Penal Inmates 442 U.S. 1, and Ohio Adult Parole Authority -v- Woodard 118 Supreme Court 1244. The provisions of the European Convention on Human Rights and Fundamental Freedoms and the other International Instruments of which the State is a signatory are not part of the domestic law of the State and are not justiciable in the Courts of the State, (see in re: O'Laighleis (1960) I.R. 93 and Application of Michael Woods (1970) I.R. 154).
After conviction the powers of comminution and of temporary release are vested in the Executive and are Administrative Matters in which the Courts have no function and in respect of which the relevant authorities have a wide discretion. This discretion was recognised by the European Court of Human Rights in the case of Boyle & Rice -v- The United Kingdom (1988) 10 EHRR 425.
Rule 3(1) of the Prisoners (Temporary Release) Rules, 1960, (Statutory Instrument 167 of 1960) provides:-
"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 the directions of the Minister release temporarily for a specified period a person serving a sentence of imprisonment in that prison. "
Mr. Kevin Lynch was sentenced to a term of eight years imprisonment by the Dublin Circuit Criminal Court on the 7th of April 1997, such term to run from the 4th of April 1996, on charges of possession of firearms with intent, possession of ammunition and aggravated burglary. He is eligible by special industry and good conduct to earn remission of a portion of this sentence not exceeding one quarter of the whole sentence by reason of the provisions of Rule 38 of the Rules for the Government of Prisons, 1947. Should he earn this remission he will be due for release from prison on the 4th of April 2002.
The Applicant states that he applied to the Governor of Portlaoise Prison
(a) on the 29th of July 1999 for transfer to the Training Unit at Glengariff Parade. Dublin or to Wheatfield Prison;
(b) on the 9th of December 1999 for temporary release for a period of Christmas;
(c) on the 20th of January 2000 for temporary release on the grounds that his parents were ill and to assist him in a programme of social reintegration;
(d) on the 21st of January 2000 for transfer to the Training Unit and a program of temporary release.
He swears that he received no reply whatever to these applications. On the 21st of June 2000 the applicant wrote to the Minister for Justice, Equality and Law Reform seeking transfer to the Training Unit at Glengariff Parade, Dublin and a structured program of temporary short term and weekend releases in order to facilitate his reintegration into society.
By a letter dated the 19th of February, 2000 the applicant was advised by the Minister that the Minister was not prepared to authorise a transfer to the Training Unit for Mr. Lynch "at this stage of his sentence ", but advised that his case would be kept under review. By a letter dated the 13th of July, 2000 Mr. Frank McDermott of the Prisons Division of the Irish Prisons Service wrote to the Applicant as follows:-
"l am directed by the Minister for Justice, Equality and Law Refonn to refer to your recent correspondence requesting a transfer to the Training Unit and a temporary release programme.
You were informed through your solicitor in a letter dated 19th February, 2000 (copy attached) that your application for a transfer to the Training Unit had been refused. It is understood that you have been interviewed by a representative from that institution who was visiting Portlaoise for the purpose of interviewing another prisoner and that you were currently undergoing urinalysis testing. This should not be assumed to mean that a transfer has now been approved The position remains that the Minster is not prepared to authorise a transfer at this stage, however, your case will continue to be kept under review.
Your applications for temporary release have also been given full and careful consideration. In reaching his decision to refuse them the Minister took the following factors into account:
(a) The nature and seriousness of your offence,
(b) whether the granting of temporary release would constitute a threat to the community,
(c) length of time spent in custody,
(d) behaviour while in custody,
(e) the remainder of your sentence left to serve,
(f) whether there are any compelling compassionate grounds which merit special consideration.
When considering applications the Minister will also take into account whether an offender has engaged constructively with the relevant prison based therapeutic services. In addition consideration may be given whether the offender has done any work in relation to addressing the circumstances/nature of their offence participated in any rehabilitate programmes and, if so, what progress has been made.
The Minister has given careful consideration to your case including the points you have made in your correspondence. In particular the Minister has noted your educational achievements and your good behaviour. However, the Minister does not feel that temporary release is appropriate at this stage of your sentence.
You should also note that this Department has issued no guidelines in relation to the number of periods of temporary release that an offender can expect to receive in relation to the length of their sentence. The document which you refer to has been forwarded to this Department but it did not originate from here, in fact this document has no standing and does not form the basis for deciding on temporary release in relation to any prisoners or groups of prisoners.
With regard to your references to another prisoner who received a transfer to the Training Unit, I wish to inform you that each case is considered on its own individual merit and as a matter of policy the Department will not enter into discussions with a prisoner on comparisons with other prisoners. "
The document in question was referred to by the Applicant in his letter to the Minister for Justice, Equality and Law Reform to which I have made reference and is described in the following terms at paragraph 12 of the Applicant's grounding Affidavit; "I believe it is the guideline for the way 'Politicals' are treated here in Portlaoise Prison and the prison system. I say that if I am not afforded the same opportunities as other offenders without prejudice or discrimination the Minister and his Department are guilty of discrimination and contravening my personal, human and constitutional rights."
Whatever its source this document has no statutory basis or any binding effect on the discretion given to the Minister or on the manner in which the Minister exercises that discretion.
There is no evidence that the authorities in this case are dealing with the applications of Kevin Lynch for transfer and temporary release on a category basis, such as was the case in Cornish' v- The Minster for Justice, where Mr. Justice O'Neill (13/1/2000) held that such a practice was ultra vires the powers of the Minister under the provisions of s. 2 of the Criminal Justice Act, 1960.
In the case of McHueh -v- The Minister for Justice (1997) I.R. 245 the Supreme Court reiterated that the granting or withholding of temporary release was a matter exclusively within the discretion of the Minister and that the Court has no jurisdiction to intervene in the process. In that case, as in the present case the Applicant relied upon the fact that temporary release (in that case upon compassionate grounds to visit parents in poor health), had been granted to other prisoners but had been withheld from him. In these circumstances I refuse this application.
