Remission and Release
Temporary release may be granted under the Criminal Justice (Temporary Release of Prisoners) Act.
The Prison Rules allow for standard remission of a quarter of the sentence, subject to compliance with criteria. The availability of remission should not be the subject of discrimination between prisoners. In theory, prison remission is earned but to a large extent it is automatic.
There is provision for enhanced remission of up to one third for prisoners who have been shown by engagement in authorised structured activity to satisfy the Minister that they are less likely to offend and better able to reintegrate into society. This is much less frequently available.
Remission is generally available provided the prisoner is of good behaviour. The courts may interfere with a decision taken in a capricious, arbitrary or unjust manner. However, subject to this, the courts will not interfere, provided that the decision is rationally made.
There have been a number of challenges to the relatively limited availability of enhanced remission. A number of prisoners have sought to challenge the failure to grant enhanced remission on the basis of participation in structured activities and programmes. Such applications should proceed by way of judicial review rather than habeas corpus.
Prison Rules & Remission
The Prison Rules now allow for application for enhanced remission based on satisfying the Minister that the applicant is less likely to re-offend having regard to
- constructive engagement in authorised structured activity,
- steps taken to address offending behaviour,
- nature and gravity of the offence,
- sentence and recommendations of the court,
- period served,
- prior offences,
- conduct while in custody or during temporary release,
- reports by the governor or Garda Síochána.
Remission is an executive act and a not judicial act. It has been held not to offend the separation of powers under the Constitution between the judicial and executive.
Prisoners committed for contempt or under the enforcement of court orders legislation are not entitled to remission. They may be released by the Minister by way of temporary release.
The right to pardon and power to commute or remit punishment is vested by the Constitution in the President, but it may be conferred by law on other authorities. The Criminal Justice Act 1951 confers power on the Minister for Justice to exercise the power of a commutation on behalf of the President.
Some legislation including legislation in respect of serious organised drug related crime offences do not qualify for remission at all by statute.
The Parole Board is a non-statutory entity which makes recommendations to the Department in relation to temporary release. The Parole Board in practice reviews longer sentences after half or slightly more than half of their duration. The Parole Board operates on very discretionary grounds. Its recommendations are not binding.
If the Board does not recommend release, there are annual reviews thereafter for prisoners serving sentences of less than 10 years and every second or third year in the case of longer sentences.
In broad terms, the Board has regard to the severity of the sentence, period served, risk to members of the community, risk of further offences, risk of person failing to return to custody in the case of temporary release, conduct in custody, extent of engagement in therapeutic services, likelihood of reintegration. The Board may or may not interview the prisoner concerned.
Constitutional & ECHR
The Supreme Court has upheld the powers of the executive in relation to prisoner release and review. It seems that the mechanism for review of life sentences is compliant with the European Convention on Human Rights. Criticism has been raised of the discretion of the Minister in relation to releases as there is a danger of the appearance of a political influence.
The issue of prisoner release raises issues in terms of the European Convention on Human Rights’ right to liberty. The European Courts have been generally reluctant to interfere with the executive powers of review and release of prisoner powers.
Generally, the original conviction, provided it is rationally based on normal and usual sentencing considerations, is sufficient rationale and justification for deprivation of liberty. In the case of indeterminate sentences, there must be some objective basis to the indefinite continued duration. The courts are more reluctant to interfere with rationally, properly imposed fixed sentences.
While the Parole Board and Minister may consider the risk to society, it should bear in mind that preventative detention is not in itself a permissible feature. However, the Irish courts have viewed temporary release as in the nature of a privilege rather than a right and not involving sentencing in any sense on behalf of the State.
The European Convention appears to allow a life sentence provided there is some provisions for review. The Supreme Court has accepted that an independent review mechanism is not necessary in respect of persons serving mandatory life sentences.
The European Court has upheld the Irish system of temporary release in life sentences. It seemed to be satisfied with the existence of the arrangements for temporary release and parole, when coupled with judicial review possibility. Parole Boards are subject to general constitutional justice obligations as applied generally to bodies exercising public powers. They operate in a inquisitorial rather than a adversarial manner.
Arguments have been made that the parole should attract a Constitutional right to legal aid. The Irish Parole Board does not engage in an adversarial process and it would appear unlikely that legal aid would be required under the Constitution other than in exceptional circumstances.
The Criminal Justice (Temporary Release of Prisoners) Act 2003 provides that the Minister may direct such persons as is specified, where the serving sentences of imprisonment shall be released for such temporary period and subject to such conditions as may be specified in a direction.
Temporary release may be revoked for breach of condition.
The release may be for the purpose of
- assessing the person’s ability to reintegrate into society,
- prepare him for release on the expiration of a sentence of imprisonment or upon being discharged before such expiration;
- where there exist humanitarian grounds;
- where it is expedient to ensure good government of the prison concerned, or
- maintain good order and humane conditions in the prison;
- where in the opinion of the Minister, the person has been rehabilitated and would, be capable of reintegrating into society.
The Minister is to have regard to
- the nature and gravity of the offence,
- sentence imposed;
- sentence already served;
- potential threat to the safety and security of members of the public, including the victim of the offence;
- offences and previous convictions,
- risk of failing to return to prison,
- conduct while in custody;
- reports or recommendation made by any of, prison governor, Garda Síochána, Probation Officer, other relevant persons;
- the risk of the person committing an offence during temporary release;
- the risk of failing to comply with conditions;
- the likelihood that temporary release may facilitate reintegration.
Records are to be kept by the governor of directions made.
The Criminal Justice Act 2006 allows the attachment of conditions relating to restrictions of movement. The person may be required to be in a particular place, keep the peace and be of sober habits. A person who breaches a condition of a temporary release is deemed unlawfully at large.
Temporary Release Issues
The Supreme Court has equated the granting of temporary release to parole. It is essentially an executive matter and not a matter of imposition of sentence.
Certain legislation restricts the ability to grant temporary release in the absence of grave reasons of a humanitarian nature. This applies to persons serving minimum sentences for certain firearms offences. Government policy has sought to make persons convicted of serious drug offences subject to minimum sentence, and ineligible for parole. Persons guilty of capital murder may not qualify for temporary release unless there are grave reasons of a humanitarian nature.
There have been a significant number of judgments in cases where applicants sought to challenge on natural and constitutional justice grounds, the grant or refusal of temporary release or imposition of conditions. The courts have been very reluctant to entertain and allow such challenges. Typically, the Prison Service does not give much in the way of detail as to the reasons for refusal.
In practice, it is very difficult to challenge the exercise of discretionary power successfully. It is not clear whether constitutional due process procedures apply in respect of decisions in relation to temporary release. It appears that revocation of temporary release is subject to considerations of natural justice as it involves a renewed deprivation of liberty.
There should be an inquiry before invoking temporary release. Accordingly, in principle a prisoner should be given reasons and the opportunity to be heard. Some courts have taken a view that there is a right of reason but no right to a hearing. The precise scope of the right has been subject to different judicial views.
Transfer of Prisoners
See generally the separate legislation on transfers of prisoners. The Criminal Justice Administration Act 1914 provides general power to transfer prisoners. The decision is formally made by the Prison Service but subject to the input of the governor. It is not clear whether the decision to transfer attracts the rules of constitutional justice. There are cases which indicated it might and other cases to the contrary.
The Transfer of Sentenced Persons Act allows for the transfer of prisoners into and out of Ireland where there is a connection with another state. A transfer may be undertaken to the state of nationality or greater connection. The powers under the Act are subject in principle to judicial review.
English case law has held that there is a right to be given notice of the intention, given the summary or extracts information on which it is based, have the right to make representations which are to be considered. An automatic an oral hearing might be required in some cases but not automatically.