The High Court has dismissed a judicial review application by a minor detained at Oberstown, who argued that he should be allowed to apply for enhanced remission of his sentence.
In a judgment delivered on 25 October 2018, Ms Justice Reynolds concluded that the application must fail. The court did not order the respondents to consider an enhanced remission application or grant the other relief sought.
The applicant, identified only as B., had received a three-year detention order on 21 November 2017, backdated to 23 May 2017. The final 20 months were suspended subject to good behaviour. After ordinary remission of one quarter, the custodial part was due to expire on 23 May 2018.
B. sought consideration for enhanced remission in a letter dated 22 January 2018. The response said the Department of Children and Youth Affairs was considering commencement of the statutory provisions for remission in children’s detention schools. B. began judicial review proceedings on 26 February 2018, seeking to quash the refusal to let him apply for enhanced remission, or alternatively to require consideration of an application or declare the refusal unlawful.
The judgment records that, after proceedings began, B. was unlawfully at large. It also records that the likelihood of success in any enhanced remission application had diminished, while noting his submission that he retained a right to apply and have it properly considered.
B.’s central statutory argument was that section 151(4) of the Children Act 2001 entitled him to seek remission for industry or good conduct. The court held that the detention order made under section 142 governed his detention. Section 151 provides a distinct detention and supervision regime, and the court said B.’s claim that he was detained under that section was unsupported. It said an alleged error in the Circuit Court order would have needed to be pursued there.
The court distinguished ordinary remission, which it said was one quarter of the sentence, from the enhanced remission scheme under Rule 59 of the Prison Rules. That scheme allows eligible adult prisoners to apply for remission of up to one third, subject to specified criteria. The court noted that the relevant 2015 amendment concerning remission for children had not been commenced.
B. also argued that the difference between the child and adult regimes breached constitutional equality protections. The respondents submitted that the two groups were not comparable and that the adult scheme was unsuitable for children. The court accepted that it was not appropriate to compare the regimes, citing the child detention system’s rehabilitation focus, individualised support and planned releases. It also distinguished an earlier case concerning different remission treatment of children held in Oberstown and St Patrick’s Institution, noting that juvenile detention outside Oberstown had ceased from March 2017.