Supreme Court: Judges dismiss appeal of man held in CMH who sought conditional release

About this case:

• Citation:
  [2020] IESC 24
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Iseult O'Malley

The court was asked to consider whether a long-term prisoner who has been transferred to the CMH, on foot of a diagnosis of mental illness, is entitled to be considered for conditional release.

Background

M pleaded guilty to murder in 2007 and was sentenced to life imprisonment. In the first few years of imprisonment he was transferred between prison and the CMH, under the Criminal Law (Insanity) Act 2006, for treatment for schizophrenia. His condition disimproved each time he returned to prison, as he did not take his medication and used illicit substances. He was last transferred to the CMH in January 2012, where he has been detained since. He was reviewed, as statute requires, twice annually by the Mental Health (Criminal Law) Review Board. Each review concluded that he required in-patient treatment in the CMH and should not be transferred back to prison.

In 2017, M applied to the Parole Board for an assessment for parole. The Board said that his application could not be considered as he was detained in the CMH. The Minister for Justice also said that he could not consider an application for temporary release.

Parole is currently a non-statutory regime, save that it is broadly the exercise of the Minister’s power to grant temporary release under s.2 of the Criminal Justice Act 1960. A person given parole can expect to remain at liberty so long as he or she complies with any attached conditions. The Parole Act 2019, when commenced, will establish an independent Parole Board. It will be empowered to order the conditional release, according to statutory criteria, to persons (under s.24 of the 2019 Act) who are serving a life sentence and who have served at least twelve years, or those who have served a term to be prescribed in ministerial regulations. Notably, s.24(7) states that a person who has been transferred to the CMH under s.15 of the Criminal Law (Insanity) Act 2006 shall not be eligible for parole while detained in that centre.

In July 2017, M was granted leave to seek judicial review. His claim was rejected by the High Court (M v The Parole Board [2018] IEHC 531). Mr Justice Max Barrett said that the Minister’s power to grant parole under s.2 of the Criminal Justice Act 1960 referred to release “from prison”. As M was not in prison, he could not be given parole unless returned to prison under the provisions of the Criminal Law (Insanity) Act 2006.

Supreme Court

M appealed, arguing that he is a prisoner serving his sentence while detained in the CMH. He argued that the definition of “prison” in section 2 of the 1960 Act is broad enough to include anywhere a convicted person may be lawfully detained to serve a sentence, and that it should not be read as excluding the CMH. He claimed his CMH detention only arose from the inadequacy of the Prison Service mental health facilities. He said that he had lost the benefit of an entitlement to seek release because of his illness, which was a punitive consequence, at odds with the paternalistic intent of the Act.

The Parole Board and Minister, relying on Murray v Ireland [1991] ILRM 465 and Doherty v Governor of Portlaoise Prison [2002] 2 IR 252 argued that parole and remission are privileges gifted by the executive, to whom the Constitution grants the power to grant clemency. The Minister has a wide discretion, and he is only amenable to judicial review if he exercises that discretion in an arbitrary or unjust manner.

They said that there was no breach of the equality guarantee, and they relied on State (Nicolaou) v An Bórd Uchtála [1966] IR 567 and M.D. (A Minor) v Ireland [2012] 1 IR 697 for the proposition that the Constitution does not require the State to treat persons or situations as alike when they are not. It was submitted that a prisoner suffering from a mental illness requiring treatment in the CMH was in an altogether different situation to other prisoners released for medical care.

Conclusion

Ms Justice Iseult O’Malley said that a life prisoner who develops a serious and chronic mental illness that requires in-patient treatment could end up indefinitely detained in the CMH. However, no argument had been raised to challenge the validity of the legislation.

The judge said that “it may be possible to envisage an argument, in an appropriate case, that the current framework is unlawful in that it offers no prospect of release for a transferred prisoner who requires in-patient treatment and is not well enough to return to prison, but who is not considered to be so dangerous that he could not be accommodated in an appropriate hospital in the community. This observation is obiter, in that this case has been argued as a question of pure statutory interpretation. While Article 40.1 of the Constitution and Article 3 of the ECHR were relied upon, there was no challenge to the validity of any legislative provision on the basis of either of these provisions.”

The appeal was dismissed.