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Lynch v. Minister for Justice, Equality and Law Reform [2001] IEHC 52 (26th March, 2001)
THE
HIGH COURT
2000
No. 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
1. 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 the 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).
2. 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.
3. 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.”
4. 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
¼ 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.
5. 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 programme
of
temporary release.
6. 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 programme of temporary short term and weekend releases in order to
facilitate his reintegration into society.
7. 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:-
“I
am directed by the Minister for Justice, Equality and Law Reform 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 l9th 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 to 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.”
8. 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.”
9. 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.
10. 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
McHugh
-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.
11. In
these circumstances I refuse this application.
© 2001 Irish High Court
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