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McGuinness, Re [2003] NIQB 3 (06 January 2003)
Ref: KERC3837
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (JUDICIAL REVIEW)
-----
IN THE MATTER OF AN APPLICATION BY KIERAN JOSEPH McGUINNESS FOR JUDICIAL
REVIEW
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KERR J
Introduction
- The applicant was sentenced to six years imprisonment
at Stafford Crown Court in May 2000 on a charge of causing death by dangerous
driving. He was transferred to Northern Ireland as a restricted transfer
prisoner, that transfer becoming effective on 17 April 2001. As a restricted
transfer prisoner he became subject to the rules and regulations of the Northern
Ireland Prison Service except in relation to the date of his eventual release
from prison.
- The applicant will become entitled to release on
licence when he has completed two thirds of his sentence on 4 March 2004. He
will be entitled to apply for parole on 5 March 2003 when half of his sentence
will have been served. By this application he claims that the Northern Ireland
Prison Service was wrong to fix his earliest release date (EDR) at 4 March 2004
for the purpose of determining his eligibility under its pre-release home leave
scheme (PRHL).
- For the reasons given in my judgment in the associated
case of Colin Malcolmson (which was heard with this case) the applicant's
claim to have his EDR fixed at 5 March 2003 must be rejected. The applicant has
raised a further argument, however. He claims that the Prison Service should
have allowed him to participate in the home leave scheme, notwithstanding that
he did not satisfy the PRHL criteria. He claims that it was open to the
respondent to do so by recourse to its powers under rule 30 of the Prison and
Young Offenders Centres Rules (Northern Ireland) 1995 and that it should have
exercised its discretion in the applicant's favour because of the exceptional
circumstances of his case. It is further argued that the only reason for
refusing to allow the applicant home leave under rule 30 is the fact that his
EDR has been fixed at 4 March 2004 and that, since this factor had been treated
by the respondent as disqualifying the applicant from consideration under PRHL
it should not have been taken into account in deciding whether he should have a
period of home leave under the general powers of rule 27.
Rule 27
- Rule 27 of the 1995 Rules provides: -
"(1) A prisoner to whom this rule applies may be temporarily released for any
period or periods and subject to any conditions.
(2) A prisoner may be temporarily released under this rule for any special
purpose or to enable him to have medical treatment, to engage in employment, to
receive instruction or training or to assist him in his transition from prison
to outside life.
…"
As I stated in the Malcolmson case, the Prison Service enjoys a wide
general discretion to release under this provision. It is entitled, in my
opinion, to have regard to the personal circumstances of the prisoner and the
reports that have been prepared in relation to his conduct in the prison; to
have regard to the level of support that he may expect to receive from his
family and friends in the community if released and to take into account the
benefit that might accrue to him by a period of home leave before becoming
eligible under PRHL.
The applicant's circumstances
- The applicant has received excellent reports from the
residential prison officer and the senior officer. He has attended a course held
at the Limavady College of Further Education and the head of the school of
applied and social sciences at that institution has given a glowing report on
his performance on the course. He has been offered employment as soon as he is
released.
- In his application for temporary release under rule 27
he stated: -
"The pre-release home leave applied for is solely for the purpose of
re-integration into society. … If granted my English conditional release on 5
March 2003, it will not be possible for the prison to facilitate the 26 days
available to me between 4 March 2003 and 5 March 2003."
The Prison Service response
- The Prison Service replied to the applicant's
application under rule 27 on 6 November 2002. The following are the relevant
passages of their reply: -
"The basis of your application is 'solely for the purpose of re-integration into
society' and with less than half of your sentence completed, a judgment must be
made on whether release would be appropriate for this reason. The consequence of
any sentence of imprisonment is that a person is removed from society for a
period. During the period in prison a management plan will prepare the prisoner
for release and, as the sentence nears completion, periods of temporary release
will complement the resettlement process. Such release is not an entitlement but
is a recognised integral part of the plan. You have yet to enter the final stage
of sentence which leads to release.
Notwithstanding your eligibility for parole licence in March of next year, your
earliest date of release is 4 March 2004. As this is still some time away, it is
not considered that it would be appropriate to release you, for the purpose
stated, at this point in your sentence. Your application must therefore be
refused.
In considering your application, account has been taken of all of the
representations you have made, and which have been made on your behalf
(including those I am aware of by virtue of the present judicial review
proceedings), as well as of the Prison Service's legal obligations, including
those under the European Court (sic) on Human Rights"
The applicant's case
- Mr O'Hara QC for the applicant submitted that in
exercising the general powers available under rule 27 the Prison Service ought
not to have taken account of the applicant's ineligibility to apply under PRHL.
He suggested that the applicant was likely to be released at the halfway point
of his sentence because of his excellent behaviour and the consequence of
fastening on 4 March 2004 as the applicant's EDR was that he would not benefit
at all from the rehabilitative effect of home leave.
- A further argument advanced on the applicant's behalf
was that the respondent had effectively fettered its discretion by concluding
that he was not suitable for release because his release date was "still some
time away". Mr O'Hara argued that this precluded the open-minded consideration
of the applicant's particular circumstances that should have taken place.
- Finally it was submitted that the respondent had
failed to take account of the applicant's excellent prospects of release on
parole because of his exemplary behaviour while in prison, his supportive family
background and his prospects for employment on release.
Conclusions
- I am satisfied that the respondent was entitled to
take into account that the applicant could not be guaranteed release until 4
March 2004. The value of home leave lies in its capacity to re-introduce the
prisoner to life outside prison at a time when his release is in prospect. The
date on which he is due to be released is therefore an obvious factor to be
considered in assessing whether home leave should be granted.
- Although the applicant may be released in
March 2003 there is no guarantee that this will occur and it is beyond question,
in my opinion, that the respondent is entitled to have regard to the possibility
that it may not. The respondent has not in any event ruled out a reconsideration
of the applicant's being granted home leave before March 2003.
- The fact that the Prison Service took into account
the date of the applicant's EDR does not mean that it was influenced by his
ineligibility for PRHL to refuse his application under rule 27. The same
circumstance (viz the date of earliest release) was relevant to both
decisions i.e. the eligibility of the applicant for the PRHL scheme and
whether he should be released under the general provisions of rule 27. It does
not follow that because the date of release militated against the exercise of
the general discretion that the respondent had allowed the ineligibility of the
applicant to influence its decision on the application under rule 27.
- It follows that the respondent's consideration of
the date of the applicant's release did not inhibit a full and open-minded
assessment of whether he should benefit from the general discretion available to
the respondent under rule 27. Indeed, for the reasons that I have given I
consider that the respondent was bound to take into account the fact that the
applicant may not be released until March 2004.
- There is no reason to suppose that the respondent
failed to take into account the applicant's excellent record in prison. On the
contrary the letter informing the applicant that it had been decided that his
application had been refused specifically stated that al representations made by
him and on his behalf had been considered before the decision was reached.
- None of the challenges made to the respondent's
decision has been made out. The application for judicial review must therefore
be dismissed.
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