The High Court adjourned a judicial review challenge to the refusal of enhanced remission, giving the Minister for Justice and Equality the opportunity to file further affidavits about a Garda report and the applicant’s criminal history and offence. The court did not grant enhanced remission or finally decide the challenge.
The judgment, delivered by Ms Justice Ní Raifeartaigh on 26 May 2017, concerns a refusal dated 10 August 2016. The applicant had been sentenced for conspiracy to commit theft to eight years’ imprisonment, with 18 months suspended, after an appeal reduced his original sentence. He applied for enhanced remission in July 2016, citing activities and courses undertaken in prison.
The refusal letter acknowledged his participation in education but cited the nature and gravity of the offence, a potential threat to public safety and security, limited engagement with services addressing offending behaviour, and the views of An Garda Síochána. The applicant argued that the decision was arbitrary, capricious or unjust, including because the assessment of his engagement was unfair and the Garda view appeared to conflict with evidence given at his sentencing hearing.
The judge said the court’s review of remission decisions is narrow and does not involve deciding whether it would have reached the same conclusion. She was not prepared to find the decision unlawful solely because the explanation for describing the applicant’s engagement as limited was unclear. She noted that the applicant had completed many courses, but none could be said to directly address the causes of his offending, and said assessment of offence-focused work fell particularly within prison authorities’ expertise.
The court had only a limited extract from the sentencing hearing and could not tell what information about the offence or the applicant’s prior record was before the decision-maker. The judgment also described an apparent difference between Garda evidence at sentencing that the applicant had not come to adverse attention during the preceding five years and the negative Garda view relied on in the 2016 refusal. The Garda report itself was not before the court, and the State had not made a formal claim of privilege over it.
The judge said confidentiality alone did not establish a blanket immunity from court scrutiny. She directed that the respondent indicate whether she intended to file affidavits making a formal privilege claim over any Garda report relied on, and providing further information about the applicant’s prior record and the offence. If a claim is made, the applicant may seek cross-examination or ask the court to inspect the report. The case was adjourned; costs were left for consideration later.