The High Court has refused an application by a prisoner for declarations or other relief requiring the State to fund legal assistance for a written submission to the Parole Board. Mr Justice McMahon delivered judgment on 27 June 2008.
The applicant was serving a 22-year sentence imposed in England for conspiring to cause an explosion with intent to endanger life or damage property. He was repatriated to Ireland in 2000. When he became eligible for a sentence review in 2005, he sought a solicitor’s help preparing a submission. The Board agreed to give him relevant documents directly, but not to send them to his solicitor; it said he could pass them on himself. No specific funding was available for the submission.
He argued that because the review could affect his liberty, constitutional fairness required legal aid. He relied on authorities concerning legal aid in criminal proceedings and, in particular, cases involving people detained without a fixed sentence or proceedings with serious legal consequences.
The judge distinguished those situations from the applicant’s. The sentence had been imposed by a court, and any reduction or remission was a privilege rather than a legal right. The Parole Board was an advisory body: it could recommend a course to the Minister for Justice, but did not decide whether the sentence would be reduced. The judge also noted that the applicant could make a submission to the Minister directly and that the Minister considered factors beyond the Board’s recommendation.
The judgment adopted an earlier ruling that prisoners had no general right to legal representation before the predecessor to the Parole Board. It also distinguished the right to representation from a separate claim that the State must pay for it. The judge said the constitutional entitlement to publicly funded legal aid had been confined principally to criminal proceedings, with only rare exceptions in other serious circumstances. In this case, he found no basis for extending that obligation.
The judge further described the Board’s process as preliminary, non-adversarial and focused on rehabilitation, rather than a legal hearing or fact-finding process. He noted that the applicant had graduated from university and had since obtained a law degree and completed a criminology course. The court concluded that he had not established grounds for relief under statute or fair-procedures principles, and refused the relief sought.