Prison Rules – Remission of Sentence

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.

The Court Poor Box – A luxury of the past?

July 29th, 2014

The concept of a Court Poor Box has been a longstanding tradition in Irish District Courts. It affords a defendant an opportunity to avoid a criminal conviction for minor offences by making a charitable donation.

Mr Justice Hogan, in the recent judicial review case of Kennedy v Gibbons, 2014 IEHC 67, described the Court Poor Box as being of:

“obscure and uncertain origins, the existence of the poor box jurisdiction is of such long standing and is so widespread and inveterate, that it must be considered now to be part of the common law which was adopted by Article 50.1 following the coming into force of the Constitution on 29th December, 1937.”

 The system is to be overhauled however, as the Department of Justice, Defence and Equality has issued a General Scheme for the Criminal Justice (Community Sanctions) Bill 2014 which was submitted to the Joint Committee on Justice, Defence and Equality. The proposed bill would abolish the Court Poor Box system and replace it with a statutory Reparation Fund for minor offences. The monies generated by the fund would go towards the provision of services and compensation for the victims of crime. The Joint Committee published a Report on 5 June 2014 which appears to welcome the introduction of the fund as a fairer way of distributing money for the compensation, reparation and assistance of victims. The matter is now with the Houses of the Oireachtas for consideration.

Road Traffic Offences

The Court Poor Box has not been an option for defendants guilty of certain road traffic offences since 1 June 2011. Section 55 of the Road Traffic Act 2010 provides that the Probation of Offenders Act 1907 does not apply to a penalty point offence, therefore where a defendant is guilty of a road traffic offence which carries with it the mandatory imposition of penalty points, he/she cannot avoid a formal conviction. The Court Poor Box option continued to be employed by some District Courts for some time following the enactment of this section, however Mr Justice Hogan clarified the position in Kennedy v Gibbons and found that the Road Traffic Act 2010 superseded the traditional informal Court Poor Box sanction and it can therefore no longer be availed for these road traffic matters.

In summary, a defendant guilty of a Road Traffic Offence which carries with it mandatory penalty points can no longer avail of the Court Poor Box as an alternative to formal conviction and will receive the relevant penalty points and fine as provided for in the legislation. In relation to other minor offences, an overhaul of the system is on the horizon and the Court Poor Box may soon be considered a luxury of the past.

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.

 

July 2014

Using your mobile phone while driving – What is the law?

July 17th, 2014

Section 3 of the Road Traffic Act 2006 made it an offence to hold a mobile phone while driving. This is a fixed charge offence of €60 (€90 if not paid within 28 days) plus 2 penalty points (4 if convicted).

What is a mobile phone?

The definition of mobile phone is a portable communication device, other than a two-way radio, with which a person is capable of making or receiving a call or performing an interactive communication function. This could therefore technically refer to an iPad or tablet also.

An ‘interactive communication function’ includes sending or receiving oral or written messages, faxes, still or moving images, or providing access to the internet.

Holding a mobile phone

To hold a mobile phone actually means not only holding the phone by hand, but also supporting or cradling it with another part of the body. So resting your mobile phone on your lap while on ‘speaker’ is in fact included in the offence.

New regulations

The loophole that existed was the ability to send text messages while your phone was in a cradle or hands-free device. This loophole has now been closed as of 1 May 2014 with a new offence of sending or reading a text message from a mobile phone while driving. A text message includes SMS, MMS and emails.

To read a text message means to access or open it, other than by voice-activation. To send a text message includes composing and typing, but does not include anything done without touching the mobile phone. Therefore reading or sending text messages solely by voice commands is technically not an offence under these regulations, however one would always need to be mindful of other offences, including careless driving.

The current penalty is a mandatory court appearance where a judge will decide what financial penalty the motorist should face. If convicted, the judge can fine the motorist a maximum of:
• €1,000 for a first offence
• €2,000 for a second or subsequent offence
• €2,000 and/or up to three months in prison for a third or subsequent offence within a twelve month period.

Current position

The Department of Transport, Tourism and Sport has published an Information Note which clarifies that the new regulations apply to mobile phones which are not being held. Therefore if you are holding a mobile phone while driving, to include cradling or supporting it by any part of your body, you will be charged with the fixed charge offence of €60 and 2 penalty points. If your phone is sitting in a hands free device and you touch it to read or send a text you will be subject to the new regulations.

The information note also clarifies that it is not an offence to speak via a hands-free device or to touch a button on a hands-free device in order to answer a phone call.

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 at Partners at Law.

How to claim for a personal injury *

December 18th, 2012

Accidents happen. No one is immune to personal injury. When it happens it is very often someone else’s fault. Most people carry insurance as a form of protection against such an eventuality. Fault is not always easy to ascribe. There can often be an element of contributory negligence. The insurance policy usually requires the insured person not to accept blame even if it seems obvious. So don’t be surprised if an apology is not forthcoming.

Personal injury is calculated in terms of damages and there are 2 types: special and general. Special damages are measured, that is, they can be assessed by adding up receipts for payments like the doctors bill or the cost of replacing a car etc. General damages are much more difficult to determine because they have to do with the value of physical damage, eg. a scar on the face of a young lady.

At Partners at Law we have developed the art and the skill of handling claims over 40 years of practice. If you want to know more give Rory a call. It won’t cost you. He is waiting to hear from you.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

Pets and Wills

April 4th, 2012

A will is not about death. It is about life after death.

Sometimes, our closest friends are our pets. We usually expect to outlive them but what if we go first?

  • Who is going to look after my dog?
  • Who is going to provide for my horse?
  • Can I leave my savings to my cat?

The answer to these questions lies in your will.

The will can be designed especially to help, protect and maintain not just a pet or an animal who survives you but also, in a charitable way, the causes of animals. By leaving a legacy to a charity set up to protect animals you have an efficient tax free method of putting your money to use. Examples are:

  • the Dublin Society for the Protection of Cruelty to Animals,
  • The Donkey Sanctuary,
  • the Irish Guide Dogs for the Blind,
  • the Irish Wildlife Trust,
  • the Irish Blue Cross, or
  • the Irish Equine Centre.

On the other hand, providing for specific animals requires a bit more care. In that case, the will must contain a trust clause. Because a pet can’t open a bank account trustees must be appointed to to do it for them. There should be 2 trustees and, because one assumes the pet to live in Ireland, they should also live in the same jurisdiction. The animal is the object of the trust and this must be clearly stated. The powers of the trustees must also be set out, eg. the power to invest or move money. The source of funds should be identified and the ability to appoint new trustees ought to be included. Some animals live extremely long lives and the trust may have to be able to last. There are also tax considerations and this will depend on the amount of money left in the trust. The management of a trust will involve expense and this will have to be taken into account.

Then, the question is: What happens after the pet dies?

You can see that the exercise can be complicated. A visit to your solicitor is, therefore, recommended

Management companies – don’t you hate them?

April 4th, 2012

These are tough times for those of us who jumped on the roller coaster and went for the ride. When the banks were throwing it around we went mad on investments. We bought all kinds: cars, boats, giant flat screens, foreign property… but most of all, we bought apartments. The monthly rent is now bringing in less than the mortgage repayment and the value has slipped into negative equity. Even if we wanted to sell we can’t because nobody out there would dream of throwing good money at an apartment in these times.

Then, to add further misery to an already miserable situation we have to contend with management matters. The day the deal was struck the solicitor went on a bit about management companies but there was so much else to think about that it didn’t sink in. Later when the keys were handed over he said some more about keeping an eye on management. Again, it didn’t register because all thoughts were on the tenants and bringing in the rent. Now, it’s not just about the flat or the rent but the common areas; the parking problems; the lift that doesn’t work; the roof that is letting in water after the big freeze in January. Who is looking after the mess?

The problem is made all the worse by the developer, who held on to a clatter of apartments for himself. They are all empty and he has gone bust. The common areas have not been signed over to the management company which has, itself, been struck off the register leaving the unit owners with unsaleable assets. Because the occupiers of the apartments are all tenants there are no owner occupiers to get together to form a committee or something to keep the place in one piece. The investors have all run for cover and no one seems to want to take responsibility.

So, aswell as losing money on a monthly basis the chances of redeeming anything appear forlorn. Despite all this, the time to act is now. Begin by picking up that phone and fixing an appointment to see your solicitor.

Hard times. We can help

April 4th, 2012

If you are thinking of buying a house and this is your first time maybe we can sort you out. We are offering a special recession rate of €990 + vat and outlay regardless of the price. We believe this is competitive and attractive. Click on the quote tab on the website and we will do the rest. Ethna and Justin are on standby.

33,000 people in Ireland suffer from dementia

April 4th, 2012

The Law Reform Commission in its 2005 consultation paper entitled vulnerable adults and the law : capacity considered existing legal mechanisms to address loss of capacity. Chief among these is the EPA.

The paper addresses people with limited decision making ability and refers to them as vulnerable adults. They can be categorised:

  • intellectual disability
  • dementia
  • mental illness
  • acquired brain injury
  • inability to communicate decisions

The one I wish to address is dementia. It is estimated that 33,000 people in Ireland suffer from dementia, most of whom have Alzheimers Disease (about 60%). Persons with Parkinson’s Disease and Huntingdon’s Disease may develop dementia late on in the disease. The incidence obviously increases with age. The National Council of Ageing and Older People has projected that by 2021 the percentage of older males will have risen from 10% to 14%, while the percentage of older females will have risen from 12.5% to 16.5%. As a result the number of adults with dementia will also increase.

The Powers of Attorney Act 1996 introduced the concept in Ireland of the epa. Before the onset of illness all adults in the country have the opportunity to manage their affairs by appointing attorneys but very few do. When dementia happens, they can no longer make decisions for themselves. Those that care may apply to the High Court for the patients to be admitted as Wards of Court. This course of action is expensive, time consuming, distressing to a family and altogether unnecessary.

The message has to go out to people showing early signs of the disease; doctors who recognise it in their patients and family members who can spot the telltale incidents of forgetfulness. Appoint your attorneys now.

 

So you want to make a living will?

April 4th, 2012

In Ireland a will speaks from death so a “living will” is a bit of an oxymoron. Instead we prefer to call this concept an advance directive. The best way we have of expressing this solution is to make *an enduring power of attorney*, or EPA for short. An EPA is a legal instrument signed by a donor appointing an attorney or attornies to conduct the business of the donor in the event that the donor becomes mentally incapable of looking after his/her affairs. The donor may also direct the attorney to carry out personal care decisions on behalf of the donor.

An EPA is usually made at the same time as a will. An executor and an attorney need not be the same although they generally are. The EPA is held by the solicitor with the will but may never be needed. A doctor’s certificate is required at the outset and 2 relatives of the donor must be notified. To become effective the EPA has to be registered in the High Court. The certificate of registration then becomes the legal instrument recognised by others to give control of the donor’s assets to the attorney and to enable personal decisions to be made concerning the donor. This can only happen if a doctor agrees that the donor has lost his/her mental faculties.

Of necessity, this two tier process is complex, involving the filing of no fewer than 14 legal documents in Court. In Partners at Law we have developed, along with the Law Society of Ireland, a sophisticated computer program designed to simplify the experience for our clients. We hope that you will give us an opportunity to show it to you.