The High Court has refused Nicholas Kendall’s application for discovery of a Garda report considered by the Minister for Justice when refusing his request for temporary release from prison.
In a judgment delivered on 13 March 2018, Mr Justice Coffey said Kendall had not provided the evidence required to justify discovery in his judicial review proceedings. The application sought the document or record setting out information received from An Garda Síochána, together with its date and author.
Kendall had applied for temporary release under the Criminal Justice Act 1960. The Minister refused the application by email on 13 January 2017, citing information from the Gardaí, the nature and gravity of the offences, and the risk of an offence during release. The Minister later said the Garda material could not be disclosed because it had been compiled and submitted confidentially.
An affidavit from an Irish Prison Service sentence manager said the Garda report had been considered and objected to discovery on grounds that it was not necessary for fair disposal of the judicial review and was protected by public interest privilege. A second affidavit disclosed that the Gardaí had said they were not in a position to recommend temporary release.
The judicial review proceedings seek to quash the Minister’s decisions and obtain reasons. Kendall also seeks damages, saying the refusal prevented him from undertaking a vocational course in or about April 2017. Those claims were not decided in this interlocutory application.
The court said the Minister has a wide discretion over temporary release and that judicial intervention is limited to cases where the discretion was exercised capriciously, arbitrarily or unjustly. Referring to earlier decisions on discovery of Garda reports, Mr Justice Coffey said an applicant must first establish prima facie evidence suggesting that reliance on the Garda view was in some way arbitrary, capricious or unjust.
He found Kendall’s request rested on the hypothetical possibility that the report might not have been based on reliable or intelligence-based information. As no evidential foundation had been laid, the court refused discovery. The judgment did not determine the substantive judicial review challenge.