Archive for August, 2014

Prison Rules – Remission of Sentence

Sunday, August 17th, 2014

The very recent decision of Mr Justice Hogan in Farrell v Governor of Portlaoise Prison & Ors. [2014] IEHC 392, delivered 5 August 2014, has sent the prison population into a frenzy.

The matter concerned an application by Mr Farrell to the effect that he was being unlawfully detained in Portlaoise Prison, in contravention of Article 40 of the Constitution, which provides in subsection 4 that no citizen shall be deprived of his personal liberty save in accordance with law.

Prison Rules 2007

Rule 59(1) of the Prison Rules 2007, S.I. No. 252/2007, provides that where a prisoner is of good behaviour during the term of imprisonment he/she shall be eligible to earn remission of the imposed sentence not exceeding one quarter of the term of imprisonment imposed. Rule 59(2) goes on to provide that:

“The Minister may grant such greater remission of sentence in excess of one quarter, but not exceeding one third thereof where a prisoner has shown further good conduct by engaging in authorised structured activity and the Minister is satisfied that, as a result, the prisoner is less likely to re-offend and will be better able to reintegrate into the community”.

Authorised structured activity’ is defined by Rule 27(2) as such structured activity as may be authorised by the Governor and may include work, vocational training, education, or programmes intended to ensure that a prisoner, when released from prison, will be less likely to re-offend or better able to reintegrate into the community.

Rule 27(3) provides that, in so far as is practicable, each convicted prisoner should be engaged in authorised structured activity for 25 hours per week. ‘Work’ is defined in Rule 28 as consisting of the performance of tasks necessary for the maintenance and operation of the prison, including cleaning or sweeping the landings, yards or other parts of the prison. Each prisoner is eligible for a gratuity in respect of this work.

Farrell v Governor of Portlaoise Prison

The applicant in this case was sentenced to five years imprisonment by the Special Criminal Court for membership of an illegal organisation, contrary to section 21 of the Offences Against the State Act 1939 (as amended). The sentence took effect from the date that the applicant went into custody in December 2010.

It was undisputed that the applicant was of good conduct in prison and he was in fact given enhanced prisoner status in October 2012. The applicant had no addiction, psychiatric or psychological issues and was never subject to any disciplinary action in prison. The applicant did however spend the entirety of his sentence on the E2 landing in Portlaoise in the company of 13 other self-acknowledged members of the IRA.

In terms of authorised structured activity, the applicant worked in the food management and cleaning section of the prison. He also completed a series of courses in prison and honoured the terms of three separate temporary releases.

Correspondence between the applicant and the prison services showed that the applicant was refused one third remission due to his failure to engage in therapeutic services in the context of offence focussed work “which in turn should lead to a reduced risk of re-offending” as this was considered an “essential requirement for the granting of one third remission”. The therapeutic services available in Portlaoise Prison were noted as being: addiction counselling; psychology; probation; and education. Further correspondence noted that, in considering the likelihood of re-offending, the Minister for Justice and Equality will take a number of factors into account, to include, “public safety, the views of local prison management and the services with which the prisoner has engaged, the prisoner’s behaviour/conduct while imprisoned or during any period of temporary release and the views of An Garda Síochána”.

It was noted that the applicant neither engaged with the Probation Services nor attended a specific eight week course dealing with offending behaviour. The Minister also submitted that the fact that the applicant elected to remain with self-acknowledged members of the IRA on the E2 landing was a highly relevant factor in considering the likelihood of his reoffending. The prison services were ultimately not satisfied that the applicant was less likely to re-offend and better able to reintegrate into the community.

Judgment

Mr Justice Hogan found that the essential elements of Rule 59(2) were twofold

  1. that a prisoner shows further good conduct by engaging in an authorised structure activity; and
  2. that the Minister is satisfied that, as a result of this engagement, the prisoner is less likely to re-offend and will be better able to reintegrate into the community.

Mr Justice Hogan had regard to Rule 27(2) and noted that ‘authorised structured activity’ was, by definition, designed to ensure that participants “will be less likely to re-offend and to reintegrate into the community”.

The court referred to Mr Justice Barrett’s judgment in Ryan v Governor of Midlands Prison [2014] IEHC 358 where the court noted that the equal aim of all authorised structure in-prison activities was to make a prisoner less likely to re-offend or better able to reintegrate into the community and that prisoners are not generally advised that certain activities and considered preferable to others i.e. that certain activities are deficient in achieving their stated aim. It was also noted in that case that the applicant could “hardly be criticised…for a failure to engage with addiction counselling” when he did not suffer from such problems.

Mr Justice Hogan found that the Minister in this case had regard to a number of irrelevant considerations and failed to apply the correct test contained in Rule 59(2). He held that the Minister could not legitimately take the views of An Garda Síochána into account as the only consideration was whether  the Minister was satisfied that by reason only of engagement in authorised structured activity the prisoner was less likely to re-offend and reintegrate into the community.

The court also noted that it was unclear whether the applicant was ever informed that participation in particular specific courses or with the Probation Services was required or that he was to disassociate with self-professed ‘political prisoners’. It found that Rule 59(2) does not distinguish between different types of structured activities and all that is required is that the structured activities in question are authorised, not that the prison participated in particular types of such activities. There was no evidence of such a requirement having been explained to the prisoners and, in any event, such a requirement would be unlawful as constituting a de facto amendment of Rule 59.

The court ultimately held that, due to the applicant’s successful engagement in authorised structured activities, he was entitled to enhanced one third remission as a matter of law as opposed to a matter of discretion on the part of the Minister. The applicant was therefore considered to be in unlawful custody and was immediately released.

Conclusion

This case has now opened the floodgates for prisoners that have been refused one third remission by the prison authorities on similar grounds to Mr Farrell to apply to the High Court under Article 40 of the Constitution. The law is now clear however that successful engagement in any structured activities authorised by the Governor of the prison, whatever they may be, will entitle the prisoner to enhanced one third remission.

Should you have any queries in relation to any of the above, please do not hesitate to contact Máirín O’Boyle-Finnegan or your usual contact in Partners at Law.