Neutral Citation no. [2001] NIQB 10

Ref:    

KERC3374

Judgment: approved by the Court for handing down

Delivered:

09.03.2001

(subject to editorial corrections)

KERR J

            This is an application for judicial review by Brendan McDonnell who is currently an inmate of HM Prison Maghaberry.  The applicant challenges the decision of the Life Sentence Unit of the Northern Ireland Prison Service (LSU) suspending him from a pre-release scheme and ordering his return to prison.  He also challenges the decision of the Secretary of State for Northern Ireland which upheld the decision of LSU.

Background

            On 3 July 1988 the applicant murdered a man called Anthony Fergal Foy.  No clear motive for the crime was ever discovered.  On conviction the applicant was sentenced to life imprisonment.  In June 1999 the Secretary of State provided the applicant with a provisional date on which he would be released on licence and he began the pre-release/working out scheme on 11 October 1999.

The pre-release/working out scheme is operated from a unit at Belfast Prison complex, Crumlin Road, Belfast.  Usually, it comprises three phases.  The first of these lasts two weeks and consists of the development of relationships between the prisoner and staff at the unit.  Arrangements are made for job interviews and assistance is given with financial arrangements.  During this time, the prisoner lives in the unit but is allowed temporary release at weekends.  The second phase lasts thirteen weeks.  During this phase the prisoner is working outside the unit but he returns there every evening from Monday to Thursday.  While on the second phase any recommendations made by professionals are worked on and the character of the prisoner is assessed.  His ability to cope with employment is monitored and evaluated.  Towards the end of the phase reports from those who have had contact with the prisoner are received and his progress is assessed in order to determine whether he is suitable to advance to the third phase.

The events which gave rise to the removal of the applicant from the pre-release scheme occurred while he was on the second phase.  On 23 November 1999 the Probation Area Manager received information concerning a young woman and her association with the applicant.  It was reported that the applicant had taken her to his father's house and had there given her Ecstasy tablets and alcohol and that he had had sexual relations with her.  It was also suggested that the young woman was vulnerable, having been the victim of sexual and emotional abuse since childhood.  Various other allegations about the woman were made that need not be detailed here.

            On receiving the information about the applicant's association with this young woman, the Probation Area Manager contacted the Lifer Management Governor at the prison and it was agreed that prison staff at the pre-release unit should make further inquiries.  As a result of these, six indecent photographs were found in a drawer in the applicant's room.  These showed the young woman and the applicant.  The governor received further information which suggested that the young woman was being used for the purposes of prostitution and that the applicant was involved in this.

 On 25 November 1999 the Life Management Governor recommended to LSU that the applicant be returned to HM Prison Maghaberry immediately.  This recommendation was accepted and the applicant was returned to Maghaberry on the same day.  On 6 December 1999 LSU wrote to the applicant informing him that he had been suspended from the pre-release scheme for "inappropriate behaviour".  It is claimed that, at that time, LSU was concerned that disclosure of more information might imperil the young woman involved. 

On 9 December the applicant's solicitors, Madden & Finucane, wrote to LSU raising a number of queries including a request for information about the exact allegation that had led to his suspension from the scheme.  By letter of 22 December 1999, LSU informed the applicant's solicitors that Mr McDonnell was "under investigation in relation to a find of indecent photographs of young girls found on 25 November 1999 between 12.40 hours and 13.40 hours in Room 25 of the pre-release unit at HMP Crumlin Road, Belfast".  The applicant's solicitors replied to this letter on 11 January 2000, complaining that the applicant had never been given the opportunity to account for the photographs.  This letter also disclosed that the applicant had helped a friend, Mr Jeff Dowey to set up a website during weekend releases.  Mr Dowey is the proprietor of what was described in the letter as a "gentleman's magazine" and it was stated that, while he was engaged in this work, that "the opportunity arose" for the applicant to have his photograph taken with a female model.  The young woman concerned was named in the letter.

On 14 January 2000 police informed LSU that, as no formal complaint had been made against the applicant, they did not consider that there was any prospect of his being convicted of a criminal offence.  On 19 January 2000 LSU wrote to Madden & Finucane stating that he had been suspended from the pre-release scheme after information had been received that he had been engaged in behaviour that was "deemed not to be appropriate for a prisoner with a provisional release date".   Subsequently, on 24 January 2000 two members of probation staff interviewed the applicant.  He claimed that the photographs had been taken as a joke and that he had had no involvement with the young woman other than posing with her for the photographs.  He claimed not to know who the woman was, despite the fact that she had been named in a letter from his solicitors of 11 January 2000.

On 27 January 2000 a case conference was held.  This was attended by the girl's social worker, the RUC officer who was in charge of the investigation into the matter, the Probation Service Area Manager, a clinical psychologist employed by the Prison Service and a number of prison staff.  A consensus of those attending the meeting was that concern arose about the appearance of the young girl in the photographs and her appearance of being under the influence of drugs.  On 11 February 2000 the clinical psychologist wrote to the Lifer Management governor stating that McDonnell's behaviour was "wholly unacceptable".  A recommendation was made to LSU as a result of the meeting on 27 January and the Unit ultimately wrote to the applicant on 1 March 2000 informing him that his case was to be submitted to the Secretary of State for review.  A gist of the material to be provided to the Secretary of State accompanied the letter.  It had been decided that more detailed information could not be released so that sources of information could be protected.

On 3 March 2000 Madden & Finucane wrote to LSU in response to their letter of 19 January.  They asked LSU to "particularise" the inappropriate behaviour.  They also asked to be informed as to which body was considering the applicant's case.  This letter was dispatched before the solicitors had received a copy of the letter to the applicant from LSU dated 1 March 2000.  A fresh copy of this was sent to Madden & Finucane on 6 March.  As noted above, this contained a gist of the material that was to be provided to the Secretary of State.  The following are the material passages from the letter: -

"Your suspension from the pre-release scheme and return to Maghaberry prison followed the discovery of indecent photographs in your room at the pre-release unit.  In these photographs you were pictured with a young woman who appeared to be in a drugged state.  A subsequent police investigation revealed that the woman in question has learning disabilities.  The photographs and information arising from the police investigation have raised serious concerns with regard to your conduct in the community, and specifically in relation to your attitude to young/vulnerable women and to prohibited drugs.  It is not anticipated, however, that any criminal proceedings will ensue.  Nevertheless, your reported behaviour calls into question your suitability for release on licence.

It has also come to the attention of the prison authorities as a result of the incident that, while on the pre-release scheme, you have been engaged in paid work at the weekends in connection with the production of a magazine.  You did not declare this to the prison authorities, from whom you continued to receive the equivalent of Jobseekers' Allowance.  Your engagement in unauthorised paid employment raises serious questions in respect of your honesty, and is viewed as being in contravention of the terms and conditions of your participation in the working-out scheme.

It is considered that work to explore and address all of these issues should now be undertaken by you within the prison setting in conjunction with professional staff."

The applicant and his solicitors were invited to make such representations as they wished on these matters by 22 March 2000.  On 7 March Madden & Finucane wrote to LSU pointing out that the claim that the young woman was in a drugged state was unsubstantiated and that RUC CARE unit at Newtownabbey had accepted that no breach of criminal or civil law had occurred.  They also asserted that the applicant was in a relationship with a 28-years-old woman and that, by reason of having had a kidney removed, he did not consume drugs or alcohol.  Indeed, they claimed that he had a "stern anti-drugs attitude".  They also refuted the suggestion that the applicant was involved in the production of a magazine.  He had been concerned in assisting in setting up a website but the solicitors had notified LSU of this on 11 January 2000.  They queried whether the applicant had ever been told that he was required to declare earnings and pointed out that he had received a single, lump sum payment in respect of this work.

On 8 March 2000 the applicant applied for leave to apply for judicial review.  I reviewed the matter on a number of occasions and gave interim directions.  On 30 March 2000 Madden & Finucane wrote again to LSU seeking further information and this elicited the following reply dated 6 April 2000: -

"I refer to your letter of 30 March 2000 in which you seek further information in relation to the circumstances surrounding the withdrawal of your … client from the pre-release scheme.

1.        The photographs found in your client's possession depict a woman in varying states of undress, and apparently in a drugged state.  In a number of the photographs the woman is entirely naked.  Your client is pictured in a number of the photographs together with the naked woman, and whilst it is not alleged that any indecent act is depicted, there is clear physical contact.  One of the photographs shows a close-up view of female genitalia.  It is therefore considered that the photographs are of an indecent nature.

2.        The Prison Service's information is to the effect that the young woman pictured in the photographs suffers from learning difficulties, is considered vulnerable and is in the care of the Social Services.

3.        Mr McDonnell is also believed to have been involved in prostitution activities with the young woman's services being advertised in a sex magazine.

4.        Further information available to the Prison Service indicates that, while on the pre-release scheme, Mr McDonnell was involved in the supplying of prohibited drugs, including Ecstasy tablets.

5.        Mr McDonnell's conduct in this matter has raised concerns not only at Prison service Headquarters but also amongst the multi-disciplinary team of professional staff with responsibility for managing his case.  It is noted that, when interviewed by the Probation Area Manager in relation to the matter on 24 January 2000, your client indicated that he had met the woman only once, and referred to the photographs as a joke.  However, having seen the photographs, these assertions are not accepted by the Probation Area Manager.

6.        It is further considered that Mr McDonnell's association with Mr Dowey and his agreement to become involved in computer work on a magazine of dubious content raise serious questions with regard to his judgment.  It is certainly not the behaviour expected of a prisoner participating in the pre-release scheme and approaching licence.

7.        In relation to the allegation that your client was engaged in paid work and had failed to declare same, the terms and conditions of the pre-release scheme were outlined to your client on 12 October 1999 and he signed a declaration to say that he understood them.  A copy of same is enclosed herewith for your information.  Conditions with regard to employment and finances are specified.  Your client as a life sentence prisoner on the pre-release scheme was paid the equivalent of jobseekers' allowance by the prison authorities on the understanding that he was engaged in unpaid employment.  In failing to inform the governor of the pre-release scheme of the change in circumstances your client was in serious breach of the terms and conditions of the scheme.

With reference to the specific points made in your letter of 30 March which have not been addressed above: -

1.      With reference to the photographs, there is no suggestion that your client was anything other than fully clothed at all times.  It is disputed, however, that this was a frolic with totally innocent motives and in particular it was noted that the lady in question appeared to be in a drugged state.

2.      It is noted that your client denies that the young woman in the photograph was in a drugged state.  In our letter of 1 March to your client it was stated that the woman appeared to be in a drugged state.

3.      Our letter of 1 March did not express any view as to whether your client was believed to have been taking drugs himself but rather as (sic) a reference to his perceived attitude to prohibited drugs given the information suggesting that he is involved in the supply of drugs.

4.      While it is not disputed that your client was not interviewed by the police we were informed by the RUC that an investigation had been launched into your client's conduct but there had been insufficient evidence to warrant any proceedings.

5.      It is noted that your letter indicates that your client did not in fact receive any remuneration for the aforementioned work due to his return to prison; however, it must be noted that your letter of 11 January stated that he was receiving payment, whilst your further letter of 6 March stated that the payment was not regular but in the form of a lump sum payment.  It is understood that Mr McCarthy, Ms Maguire and Ms Snowdon were aware that your client was engaged in computer related work at the weekends but were not aware of the content of the website or that he was receiving remuneration for it.

It is considered that the information set out above provides your client with a sufficient gist of the reasons for the decision and should enable him to make informed representations as to why he should be allowed to return to the scheme."

The applicant's solicitors replied on 13 April denying the allegations concerning involvement in prostitution or supplying drugs.  On 16 May 2000 they were informed that the Secretary of State would review the applicant's suspension from the scheme and his suitability to retain a provisional release date.  The solicitors were invited to submit any further representations they wished to make.  None was forthcoming and in early June 2000 the Secretary of State undertook a review of the case.  He had before him the letters from Madden & Finucane of 6 March and 13 April, a summary of events and a consideration of the issues together with a recommendation that the suspension be confirmed and the provisional release date be withdrawn.  The Secretary of State, having considered these materials, decided to uphold the decision to suspend the applicant from the pre-release scheme.  He also withdrew the applicant's provisional release date.  The applicant was informed of the Secretary of State's decision by letter of 6 June 2000.

On 26 July 2000 a multi-disciplinary meeting was held to consider the applicant's case.  It was reported to the meeting that, in discussions with the applicant in June 2000, he had agreed to participate in a programme designed to deal with his attitude to women in general and young women in particular.  He had continued to maintain his innocence of the matters which had given rise to his suspension from the pre-release scheme.

The judicial review application

On behalf of the applicant Mr O'Rourke stated that the thrust of the applicant's case was that he had not been informed of the nature of the allegations against him until 6 April 2000.  The decision to remove him had been taken on 25 November 1999.  The applicant had not had the opportunity to make informed representations to LSU before the decision to suspend him from the pre-release scheme had been taken nor before this was confirmed in February 2000.  Furthermore, Mr O'Rourke said, the applicant has never seen the psychologist's report on which (at least partly) the decision to confirm his suspension from the scheme was based.  Relying on the decision of R v Secretary of State for Home Department ex parte Doody [1994] 1 AC 531 he submitted that the applicant ought to have been given these details before the decision to suspend him from the pre-release scheme was taken, or, at least. Before that decision was confirmed by LSU.  He submitted that LSU should have reconvened to consider the representations made on behalf of the applicant but there was no evidence that this had taken place.  Finally, he suggested that the Secretary of State should not merely have reviewed the LSU decision.  His duty, Mr O'Rourke argued, was to decide whether the applicant should be released on licence.  The explanatory memorandum issued to life sentence prisoners described the Secretary of State's responsibility in paragraph 23 thus: -

"In considering the possible release of a life sentence prisoner, the very greatest care is taken by everyone concerned in the prisons, the Life Sentence Unit and the Life Sentence Review Board.  Each case is considered on its merits, taking into account the nature of the prisoner's offence, his response in prison and all other relevant factors, including the views of the judiciary.  The responsibility for the decision to release a life sentence prisoner rests with the Secretary of State.  This is an onerous decision: the overriding consideration is the need to protect the public from the risk of a repetition of the offence or some other crime of violence.  It is impossible ever to be absolutely sure that there will be no future risk, but the Secretary of State will not agree to any life sentence prisoner's release unless he is personally as satisfied as it is reasonably possible to be that the degree of risk is minimal."

Mr O'Rourke claimed that there was no evidence of a risk that the applicant would commit the crime of murder again or any other crime of violence.  The decision to suspend him from the pre-release scheme failed to give effect to paragraph 23 of the Memorandum, therefore.  

For the respondent, Mr Maguire pointed out that this was not a case of actual release on licence.  The applicant was, at the time of suspension, on a pre-release scheme.  He had signed a form which acknowledged that he had read and had explained to him the conditions on which the pre-release/working out scheme had been granted to him.  These had enjoined him to conduct himself in a lawful and responsible manner.  It was because of his failure to act in a responsible manner that his participation in the scheme had been brought to an end. 

Mr Maguire accepted that the applicant had not been fully informed of the reasons for his suspension from the scheme until April 2000.  He submitted that the authorities had been justified in withholding details from the applicant, not because they wished to conceal the identity of the young woman who had been photographed with the applicant but because they did not want to reveal that she was the source of the information on which they had acted.

Mr Maguire also accepted that the prison authorities were under a duty to act fairly but submitted that what fairness required varied from case to case, as Lord Mustill had recognised in the case of Doody.  There was no obligation on LSU, he submitted, to reveal all documents relevant to its decision.  It was sufficient that the burden of the adverse information be relayed to the applicant.  If this had not been done before April 2000, the release of information at that stage cured any earlier unfairness.  The applicant's solicitors were able to make substantial representations after full disclosure had been made.

The duty to disclose

The Divisional Court in Re Robert Kerr [1999] unreported has confirmed that a prisoner whose licence has been revoked should generally be informed of the reasons for the revocation.  Delivering the judgment of the court, Carswell LCJ said: -

"It is now clear from the authorities that fairness requires as a general rule that (a) a prisoner whose licence is revoked must receive at some stage an opportunity to make representations about the revocation and (b) in order to do so effectively he must be made aware of the reasons for the revocation, if he does not already know them.  …  We do not consider, however, that it is possible to lay down general rules about the stage at which the opportunity to make representations must be afforded or about the extent of any exception to the obligation to give reasons based upon protection of sources of information who might be put in danger.  In our view these are matters in respect of which much may turn upon the circumstances of the individual case and it would not be useful to prescribe procedures in any greater degree of detail."

I do not consider that any distinction should be drawn between the case of a prisoner whose licence has been revoked and one who has been suspended from a pre-release/working out scheme.  In general the prisoner who has been suspended from such a scheme will be entitled to be informed of the reasons for his suspension and to be given the opportunity to make representations on the decision.  When he must be informed and whether any of the information on which the decision is based may be withheld from him will depend on the particular circumstances of the individual case.

The information given to the applicant

            I do not consider that the applicant was given sufficient information at the time of his suspension from the scheme.  Merely to inform the applicant that he had been guilty of "inappropriate behaviour" conveyed nothing meaningful to him.  No informed representations could be made on such a general statement.  While a wish to protect the identity of the person making the allegations against the applicant may have justified the withholding of certain information, it could not warrant such an indefinite response to the queries raised by the applicant.  In any event, within a relatively short time, the respondent began to release more information to the applicant and his solicitors without, apparently, any compromise of the young woman's safety.

I am of the view, however, that the applicant and his advisers have now received sufficient information and have been given ample opportunity to make representations upon it.  As the Divisional Court held in Re Crawford's application [1994] NIJB 83, 87 the failure to provide the opportunity to make representations until after an adverse decision cannot be regarded as automatically unfair.  The exchange of correspondence between the applicant's solicitors and the Prison Service outlined above was comprehensive in its investigation and disclosure of the reasons for the applicant's suspension from the scheme.  The only item of information that Mr O'Rourke could identify as having been denied the applicant was the psychologist's report.  It is clear, however, that this was no more than a letter that stated that the applicant's behaviour was "wholly inappropriate".  In my view, this would not have added materially to his knowledge about the reasons for his suspension from the scheme. 

Consideration of the applicant's representations

The correspondence passing between the Prison Service and the applicant's solicitors bears witness to the careful consideration of all matters canvassed on his behalf, in my opinion.  Every material point was commented upon and, where appropriate, answered.  I do not accept that it was necessary for LSU to reconvene in order to evaluate these points.  The Prison Service was entitled, in my view, to assess the material submitted on the applicant's behalf and to reach the judgment that a further meeting such as had taken place on 27 January was unnecessary.  The matter was at all times kept under review by a member of LSU and that satisfied all requirements of fairness in the circumstances.  Furthermore, all relevant material was placed before the Secretary of State and there is no reason to suppose that he failed to consider it carefully.

The review by the Secretary of State

The Secretary of State was asked to review LSU's decision to suspend the applicant from the scheme.  It was not appropriate for him to consider whether the applicant should be released on licence.  Such a decision could only be taken after the pre-release phases had been undertaken.  It was not incumbent on the Secretary of State to apply paragraph 23 of the explanatory memorandum issued to life sentence prisoners, therefore.

Conclusions

Although the applicant and his advisers ought to have been supplied sooner with the information given on 6 April 2000, I am satisfied that they have now received all relevant information and have been afforded reasonable opportunity to comment on it.  I am further satisfied that, even if such material had been released earlier, it would have made no difference to the outcome of the representations made on his behalf.  The application for judicial review is dismissed.