About this case:

• Citation:
  [2022] NIQB 28
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Judge Adrian Colton QC

Background

The applicant, Michael Larkin, is a prisoner at Maghaberry Prison. In 2019 he sought leave to challenge a decision to refuse him compassionate temporary release (CTR) to attend his mother’s funeral. The matter was heard on an urgent basis by Mrs Justice Siobhan Keegan, who refused to grant the relief sought.

A pre-action correspondence was issued by the applicant, arguing that the applicant was unjustly refused release to visit his mother in hospital before her death.

He alleged that this was based on a flawed information sharing system in place between the hospital and the Northern Ireland Prison Service (NIPS), which was irrational and incompatible with Article 8 of the European Convention on Human Rights.

He further alleged that he was denied CTR on the basis of discrimination due to his Catholic/nationalist background.

The funeral decision

The original application to challenge the funeral decision was dismissed by Mrs Justice Keegan, as was the argument of purported discrimination the between treatment of prisoners.

The applicant pointed to figures provided by the NIPS from a freedom of information request made in 2015, which highlighted a disparity between the numbers of prisoners from a Catholic/nationalist background being released on CTR and those from a Protestant/unionist background.

NIPS argued that the discrepancy was a result of the security risks to officers. The applicant argued that this approach acted to the detriment of prisoners from a Catholic/nationalist background, which amounted to either direct or indirect discrimination under Article 8 and Article 14 of ECHR and also section 75 of the Northern Ireland Act 1998.

The applicant further argued that although his leave had been refused, this was an important matter of law for the court to determine in the interests of justice, as it may arise again, in another urgent situation.

In assessing these arguments, the court noted that, in the funeral decision, the security assessment was only one factor taken into account. A key consideration was the risk posed by the applicant having regard to the serious nature of the offences for which he had been convicted and the fact that he had been deemed a risk of serious harm under the Criminal Justice (Northern Ireland) Order 2008.

The court took the view that this matter had already been determined by the earlier court. Leave to apply for judicial review in respect of the funeral decision was refused.

The hospital decision

On 2 November 2019, the applicant’s solicitor made a written request to NIPS seeking a period of CTR to visit his mother who was ill in hospital.

In response, NIPS claimed: “We contacted Daisy Hill Hospital, Newry who advised your mother is ill. They further advised her condition is not classified as being critically ill at this time […] Having completed this process, NIPS are not persuaded to exercise our discretion to grant temporary release on this occasion.”

The applicant issued pre-action correspondence, which argued that “staff at Daisy Hill Hospital […] deny they informed NIPS that [she] was not classed as being critically ill”.

NIPS did not accept that there was any discrepancy between the information provided. They provided a log breakdown, as follows:

The applicant also claimed that the system between NIPS, the hospital, and the Southern Health and Social Care Trust was flawed. He challenged the failure to provide updated information to the effect that his mother’s condition had deteriorated and his lawyers submitted that this “resulted in the applicant being refused the bedside visit he sought before she passed away”.

In response, the trust argued that family members had been with the mother for 24-hour periods prior to her passing, and that there was no request made by the patient to have contact with her son Michael Larkin.

The trust also argued that in the past it had successfully facilitated patients speaking to relatives who are not able to visit regardless of the reason.

Determination

The criticism of the trust appeared to be that it failed to ensure that information provided to NIPS was accurate, comprehensive and timely. It was further suggested that this demonstrated a systemic flaw in the CTR scheme.

The court found no basis in fact for any assertion that the information passed by the trust to NIPS was inaccurate. Notes indicated that the patient was ill but was “stable” for the first number of days. The notes record “a rapid deterioration” on 5 November 2019, which was the day after NIPS called the trust inquiring about her condition.

The court then considered any obligation on the trust to alert NIPS about a deterioration in a patient’s condition. The court rejected this submission as being unarguable.

The court found that the hospital clearly kept the relatives updated as to the mother’s condition, and they were present throughout her time in hospital. Further, the court noted that information required for CTR is readily available to applicants and to the court.

The court took the view that a new system was not required when the desired result can be and is obtained through current practices.

Conclusion

The court noted that the right to CTR, protected by Article 8, is a conditional right. The court’s role is a supervisory one, which must give due deference to the decision-maker and should only interfere if the applicant can establish a legal basis for so doing.

The court also pointed out that even had all of the steps been followed according to the applicant’s wishes, CTR may still have been refused, given his risk factor.

Leave to apply for judicial review was refused.