Factual and Procedural Background
This opinion concerns an application commenced on Saturday 26 January 2013 by the Plaintiff seeking leave to apply for judicial review of a decision by the Northern Ireland Prison Service refusing the Plaintiff temporary release to attend her sister's funeral and/or wake. Initially, the Prison Service refused temporary release for the funeral but later permitted release for the wake, limiting attendance to one hour. The Plaintiff did not pursue judicial review of the refusal to attend the funeral but challenged the limitation of the wake attendance to one hour, arguing for approximately four hours.
The Plaintiff had been sentenced to two life terms and twenty years imprisonment in 1973 for convictions related to a bombing. She had previously been released on licence on humanitarian grounds in 1980 but had her licence revoked in 2011 following events at a public commemoration and subsequent charges including supporting terrorism. Despite being granted bail on the new charges, the Plaintiff remained in custody due to the licence revocation. Her health has deteriorated, and she is currently hospitalized.
The procedural context includes the Prison Service’s practice of requiring a bail order before considering temporary release applications, which the court found problematic. The court emphasized the distinction between the Prison Service as decision-maker and the court's supervisory role in judicial review. The court granted leave for judicial review on grounds including inadequate consideration of the Plaintiff’s mental health and failure to properly consider conditions that could mitigate public risk during temporary release.
Legal Issues Presented
- Whether the Prison Service’s decision to limit the Plaintiff’s temporary release to one hour to attend her sister’s wake was proportionate and took proper account of relevant factors, including the Plaintiff’s health.
- The appropriate sequence and interaction between decisions of the Prison Service regarding temporary release and bail decisions by the courts in cases involving sentenced prisoners with outstanding charges.
- The extent of the court’s supervisory role in reviewing decisions of the Prison Service and the degree of deference or latitude to be accorded to the Prison Service’s discretion.
- Whether the Prison Service failed to consider or give appropriate weight to conditions that could be imposed to protect public interests during temporary release.
Arguments of the Parties
Applicant's Arguments
- The one-hour limit on temporary release was arbitrary and insufficient, particularly given the Plaintiff’s severe depressive illness and risk of worsening mental health without adequate time at the wake.
- The Prison Service failed to adequately consider or give appropriate weight to medical evidence regarding the Plaintiff’s health.
- The Prison Service did not properly consider conditions that could be imposed to mitigate risks to public safety during temporary release, such as sureties, accompaniment by medical staff or politicians, and restrictions on media contact.
- The Prison Service’s practice of requiring bail before considering temporary release is inappropriate both in principle and practice.
Respondent's Arguments
- The Prison Service contended that bail decisions do not bind their decisions on temporary release.
- It was asserted that the Prison Service operates under considerable time pressure and that requiring bail decisions before temporary release decisions helps manage these pressures.
- The Prison Service argued that the multi-agency nature of temporary release decisions and confidentiality issues limit the information they can access compared to the courts.
- The Prison Service maintained that no controlled means of release could be identified that would ensure public safety.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| In the Matter of an Application by BG (An Applicant for Bail) [2012] NIQB 13 |
Principle that bail must generally confer liberty immediately or in the foreseeable short term; considerations on the relationship between bail and temporary release. |
The court agreed bail should not be granted if it does not confer liberty; emphasized the Prison Service should first decide on temporary release before bail is considered. |
| Re Hill's application for leave [2007] NICA 1 |
Test for granting leave in judicial review: whether there is an arguable case. |
Applied to determine whether the Plaintiff had an arguable case to proceed with judicial review. |
| Omagh District Council v Minister for Health, Social Services and Public Safety [2004] NICA 10 |
Test for leave in judicial review proceedings. |
Used to confirm the standard for granting leave to apply for judicial review. |
| IRC v National Federation of Self-Employed and Small Businesses Limited [1982] AC 617 |
Standard for leave stage in judicial review: existence of an arguable case on a quick perusal. |
Quoted to support the grant of leave where an arguable case is present. |
Court's Reasoning and Analysis
The court carefully distinguished the roles of the Prison Service and the courts, emphasizing that the Prison Service is the primary decision-maker on temporary release, while the court's role is supervisory through judicial review. The court analyzed the principle that bail should confer liberty immediately or in the foreseeable short term, agreeing with prior authority that it is inappropriate to grant bail if it does not secure liberty.
The court found the Prison Service’s practice of requiring a bail order before considering temporary release to be flawed both in principle and practice. It reasoned that the Prison Service is better placed to assess risks and has access to up-to-date information, including disciplinary records and medical evidence, which courts may not have.
The court noted the lack of information exchange protocols between the Prison Service and the courts, resulting in decisions being made without full knowledge of relevant evidence. It suggested that applications for bail and temporary release should be launched simultaneously but with the Prison Service making the initial decision on temporary release.
Regarding the Plaintiff’s health, the court found that the Prison Service failed to give adequate consideration or weight to medical evidence indicating severe mental health issues and the risk of worsening depression without sufficient time at the wake. The arbitrary one-hour limit lacked medical justification.
The court also found an arguable case that the Prison Service did not properly consider or give sufficient weight to possible conditions that could mitigate public safety risks during temporary release, such as sureties, accompaniment, and restrictions on media contact.
Holding and Implications
The court granted leave to apply for judicial review on the grounds that the Prison Service may have failed to properly consider the Plaintiff’s mental health and the conditions for temporary release.
HOLDING: Leave to apply for judicial review was granted.
The direct effect is that the Plaintiff may proceed with judicial review challenging the limitation of temporary release to one hour. The court indicated it would hear the full substantive hearing shortly. No new precedent was set; rather, the court clarified the procedural relationship between bail and temporary release decisions and emphasized the need for proper consideration of medical evidence and conditions mitigating public risk.