The Court of Appeal has dismissed Michael McKevitt’s appeal over the Minister for Justice and Equality’s refusal to grant him enhanced remission, leaving the High Court’s rejection of his judicial review challenge in place.
In a judgment delivered on 18 June 2015, Ms Justice Irvine said Rule 59(2) of the Irish Prison Rules 2007 gave the Minister discretion to refuse enhanced remission even where a prisoner had engaged in authorised structured activities. The question was whether, as a result of those activities, the prisoner was less likely to reoffend and better able to reintegrate into the community. The Minister could assess that question in light of relevant facts about the individual prisoner, including their offending history and personal circumstances.
McKevitt was serving concurrent sentences of six and 20 years, imposed in 2003 for membership of an unlawful organisation and directing the activities of an organisation subject to a suppression order. He applied in July 2014 for remission of up to one third of his sentence. He cited his conduct, educational courses and certificates, as well as work on the E2 landing at Portlaoise Prison. He argued that the Minister should focus on his participation in authorised structured activities, and that he had not been given fair guidance about which activities would count.
The judgment records that the refusal was based on several matters, including the absence of offence-focused work, concerns about his continued association with an organisation, his criminal history and information from prison authorities and An Garda Síochána about the risk of reoffending. It also records that duties on the E2 landing were unsupervised and not treated as authorised structured activity. These were matters considered in the Minister’s decision; the appeal court’s task was to review the lawfulness of that decision, not to make a fresh remission decision.
The court rejected the argument that completing any authorised activity automatically required the Minister to grant enhanced remission. It said activities could carry different weight depending on the prisoner and the connection between the activity and their circumstances. The court also found no rule requiring prison authorities to advise prisoners which activities the Minister might prefer. It noted that a prison notice described the scheme as discretionary and referred to therapeutic services and activities tailored to prisoners’ needs and offending behaviour.
The appeal court concluded that the Minister had not acted arbitrarily, capriciously or unjustly, had not relied on material that should have been excluded, and had not breached fair procedures. It dismissed the appeal.