On parole

A recent Supreme Court case brought focus to the respective roles and functions of the Parole Board and the Mental Health (Criminal Law) Review Board, write Shane McCarthy and Patricia Hickey

The Parole Board in Ireland currently operates on an advisory, non-statutory basis. This is a situation that will change on the commencement of the Parole Act 2019. Currently, the Minister for Justice is empowered by section 2 of the Criminal Justice Act 1960 (as amended) to make rules allowing for the temporary release of prisoners.

The minister has very wide discretion in this regard, and the courts have stated that the exercise of such executive powers can only be criticised by the courts if they are carried out in “a manner which is in breach of the constitutional obligation of the executive not to exercise them in a capricious, arbitrary or unjust way” (as stated by Finlay CJ in Murray v Ireland (1991) and cited with approval by Hardiman J in 2001 in Kinahan v Minister for Justice).

In exercising the discretion to grant temporary release to prisoners serving long sentences, the minister is frequently advised by the Parole Board.

The board currently only considers the cases of prisoners serving life sentences or determinate sentences of eight years or longer. In relation to prisoners serving shorter sentences, the minister frequently grants temporary release without any reference to the board.

This position will change when the Parole Act 2019 is commenced. That act establishes a statutory Parole Board that will decide on parole applications, rather than making recommendations, and the eligibility criteria will be quite different to that currently pertaining.

Criminal Law Review Board

Section 3 of the Criminal Justice Act 1960 allows for temporary release from the Central Mental Hospital (CMH) of ‘criminal lunatics’ held there. ‘Criminal lunatics’ are defined as those detained in the hospital “by warrant, order or direction of the Government” and, if he or she is serving a sentence of imprisonment, whose sentence has not expired.

On occasion, prisoners who have been deemed fit to stand trial and been convicted of an offence have subsequently been transferred from prison to the CMH. These transfers are made pursuant to medical certification that the prisoner is suffering from a mental disorder for which they cannot be afforded appropriate care or treatment within the prison.

Once transferred to the CMH, the prisoner is entitled to have their case reviewed every six months by the review board, leading to an order directing that the prisoner be transferred back to prison or that the prisoner continue to be detained in the hospital.

Overlap

The Parole Board does not review the cases of prisoners detained in the CMH. Prisoners who are engaged in the parole process and who are subsequently transferred to the CMH have their Parole Board review(s) suspended while they are detained in the CMH. The Parole Act 2019 retains this position.

The 2020 Supreme Court case of M v Parole Board and the Minister for Justice and Equality considered the issue of whether a person detained in the CMH, while serving a sentence, could compel the Parole Board to consider their application for temporary release or parole in the same manner as a prisoner detained in prison.

Various arguments were made, including one based on equality, and that a prisoner detained in the CMH should be treated in the same manner as a prisoner detained in a prison. Further equality arguments were advanced, setting out that the minister and the Parole Board would consider the case of a prisoner receiving medical treatment in a hospital, and it was inequitable that they would then refuse to consider the application of a prisoner in the CMH for parole.

The manner in which a prisoner is detained in the CMH is an issue that also received much scrutiny before the Supreme Court. It was argued that the clinical director of the CMH has a discretion to grant a programme of leave to a ‘patient’ in his care, but not to a ‘prisoner’, whose only recourse was to the review board process.

The Supreme Court, however, held on this point that there was no distinction between other patients in the CMH and ‘transferred prisoners’.

It was held that the clinical director of the CMH might consider temporary release to be as appropriate for a transferred prisoner as for a patient, and these were matters best left to the judgment of the clinical director, subject to the consent of the minister.

It was accepted, however, that the powers to grant temporary release to a transferred prisoner could not go beyond limited periods of release before the question of a return to prison would arise in one of the review board’s regular reviews.

It was the view that, once a person was well enough not to require in-patient treatment in the CMH, then they should be transferred back to prison. Subsequent review and progress towards release should take place pursuant to the Parole Board process.

Discretion

In considering the issue of parole, the Supreme Court reaffirmed that the early release of prisoners was an exercise in clemency, which was to be seen as a privilege rather than a right. This approach affords the minister a very wide discretion.

The courts had next to determine whether the minister had a discretion to consider the applicant for parole, with the argument having been made that even if the minister had a very wide discretion in the decision he could make, he would be acting in an ultra vires fashion if he failed to consider the application, as he obviously would not have acted within his discretion.

The Supreme Court determined that section 2 of the Criminal Justice Act 1960 (as amended) was never intended to apply to prisoners transferred to the CMH and, accordingly, the minister did not have a discretion to consider the applicant for parole.

This will be an evolving area, and there are additional factors to consider when the patient transferred to the CMH is a prisoner serving a determinate sentence. Matters likely to create further analysis include the interaction with the Mental Health Act 2001, where, on the completion of a sentence, a prisoner might be detained in an approved centre/psychiatric facility under the provisions of that act.

Another recent case (AM v HSE) illustrated the growing importance of this field of law. In that 2019 case, a prisoner serving a determinate sentence was transferred to the CMH upon diagnosis of a mental illness.

Shortly before he was due for release on the expiry of his sentence, he was made a ward of court for the sole purpose of seeking an order for his continued detention in the CMH because, among other things, there was no other psychiatric treatment facility available that could provide a sufficient level of scrutiny.

Wards of court

With increasing frequency, wardship cases bring to light cases where a vulnerable person is being detained in prison on remand due to a lack of appropriate care facilities being available in this jurisdiction.

All too often, District Court judges are faced with impossible situations where they continue to detain a vulnerable person on remand because releasing the prisoner on bail would result in immediate homelessness and safety concerns.

The wards of court and the Mental Health Act systems operate side by side. A ward of court is not detainable under the mental health legislation, as wards are excluded from the Mental Health Act (section 283 of the 1945 Mental Health Act). Therefore, a ward of court, if deprived of liberty, is detained under the jurisdiction of the Wardship Court.

Some recent cases illustrate this alignment. In the first case, a person who was detained on remand for many months was brought to the attention of the High Court by his solicitors in a District Court case.

On a visit by the court’s medical visitor – an independent consultant psychiatrist – serious concerns were raised about the psychiatric and medical care being afforded to the prisoner. On a successful application to the Wardship Court, the man was declared a ward of the court, was released from prison, and transferred by order of the court to a residential care facility.

Therapeutic care

In another case, a prisoner was not suffering from a mental disorder as defined under the mental-health legislation, yet the prisoner was vulnerable and suffering from a condition that rendered him incapable of managing his affairs.

He was on remand for summary offences for many months, as the concerns were such that, to release him on bail would result in harm to himself or others. Ultimately, an application was made to the Wardship Court to bring him under the protection of the court to facilitate a transfer outside the jurisdiction to a facility that could provide therapeutic care and rehabilitation.

An application was made for bail conditions to be amended to permit his transfer to Britain for treatment, and the ward was successfully admitted to a psychiatric facility in England for therapeutic treatment, with regular reviews being held before the Irish court.

In a further case, a prisoner was held on remand; however, he was detainable under the mental-health legislation, as he was suffering from a mental disorder as defined. Failures to previously detain him in a psychiatric unit were brought to the attention of the District Court judge, who – due to her concerns for his safety and welfare – was not agreeable to releasing him on bail.

The District Court judge contacted the President of the High Court, raising concerns that a vulnerable man continued to be held on remand due to a lack of appropriate care facilities, and that he may be an appropriate person to be brought under the protection of wardship, as he lacked capacity to make decisions based on the medical reports available.

Wardship

The court directed an inquiry into wardship under section 11 of the Lunatics Act 1891, and an application to bring the gentleman under wardship jurisdiction was listed before the Wardship Court. Although the respondent met the criteria for the test for capacity to be admitted to wardship, it was deemed that he did not meet the criteria for necessity of wardship.

This was based on the fact that the respondent suffered from a mental disorder and was detainable under the mental-health legislation. An application was made to the High Court for bail, which was granted, and the gentleman was detained to a psychiatric unit for his safety and protection under the mental-health legislation, with reviews under the mental-health tribunals.

It is clear, that solicitors advising clients in this expanding area will need to be aware of the provisions of the Parole Act 2019 upon commencement, the Criminal Law (Insanity) Act 2006 and the Mental Health Act 2001, as well as the various provisions of the wards of court system before they will be able to advise their clients appropriately.

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