|
|
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 -----
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.
|
|
|
