Decision making process by Prison Governor in Compassionate Temporary Release application deemed unlawful

We act on behalf of Mr Jonathan Heaphy, who is currently a sentenced prisoner in Cork Prison. Mr Heaphy is suffering from an incurable brain cancer and has been receiving treatment while in prison.

An application for compassionate temporary release had been made on behalf of Mr Heaphy for his release from prison for a temporary but indefinite period, for the duration of his chemotherapy. This application was reviewed by the Minister for Justice and Equality and was refused on 3rd October 2017.

Following this decision, our office wrote to the Governor of Cork Prison and the Irish Prison Service to review this decision. The basis of this review was to release Mr Heaphy on grounds of health or health related humanitarian grounds. A number of medical reports were provided to the Governor outlining that it would be imperative for Mr Heaphy, following chemotherapy, to avoid contact with third parties in order to reduce the risk of infection, in particular to reduce the risk of tuberculosis and hepatitis. It was contended that the risk of infection is greater in prison than if a prisoner were allowed to go home during the course of such treatment. It was argued that the decision not to release was irrational, in breach of s.2(2) of the Criminal Justice Act 1960 and also in breach of Article 8 of the European Convention on Human Rights.

This request was again refused by the Governor and in light of this decision, our office initiated judicial review proceedings in the High Court on behalf of Mr Heaphy. Following from affidavits lodged in the course of the proceedings, it came to light that the Governor of Cork Prison had failed to refer a number of our requests for compassionate temporary release to the Minister and refused the applications himself.

It was argued therefore that in acting as he did, the Governor was in effect acting as an unlawful “gatekeeper”, failing to refer the requests to the Minister and making decisions for compassionate temporary release himself when he had no power to do so.

Handing down Judgment today, Mr Justice Binchy agreed with this argument, proposing to make a declaration in such terms to be agreed by the parties.

Michael Halleron, of Madden & Finucane Solicitors, stated the following:

“Our argument to the Court was that by the Governor deciding himself not to reconsider Mr Heaphy’s applications for temporary release, he had usurped the statutory decision making power of the Minister for Justice, acting in excess of his own powers and acting in breach of the principles of natural and constitutional justice.

“Mr Heaphy remains in custody, with his chemotherapy now finished.

“He is shortly due for release.

“Notwithstanding this and as highlighted by the Judge in his Judgment today, it is very clear that this is an issue which may affect not just Mr Heaphy in future, but prisoners generally who may apply for temporary release on grounds of ill health.”