Frane's (Shane) Application
| Jurisdiction | Northern Ireland |
| Judge | Colton J |
| Judgment Date | 15 November 2023 |
| Neutral Citation | [2023] NIKB 108 |
| Court | King's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2023] NIKB 108
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: COL12318
ICOS No: 23/004715/01
Delivered: 15/11/2023
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
KING’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY SHANE FRANE
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS BY THE NORTHERN IRELAND
PRISON SERVICE
___________
Ms Quinlivan KC and Mr Séamus MacGiollaCheara (instructed by Emmet J Kelly & Co
Solicitors) for the Applicant
Ms Neasa Murnaghan KC and Mr Tom J Fee (instructed by Departmental Solicitor’s
Office) for the Respondent
___________
COLTON J
Introduction
[1] This case concerns the interplay between three decisions of the
Northern Ireland Prison Service (“the respondent”), two of which are the subject of
the applicant’s challenge. The first concerns the suspension of the applicant from the
pre-release testing (“PRT”) scheme by the governor for the Prison Development Unit
(“PDU”). This scheme permits a prisoner to be temporarily released from custody
for both supervised and unsupervised periods with a view to assisting in their
transition from prison to outside life. The second concerns the decision to remove
the applicant from Wilson House to Braid House, with the effect of demoting him
from Enhanced status to Standard Status under what is known as the Progressive
Regimes and Earned Privileges Scheme (“PREPS”). The effect of the latter is that the
applicant must restart PRT as it can only be undertaken by prisoners with Enhanced
Status.
[2] The third decision is not being challenged in these proceedings but is a central
facet of the applicant’s case. It relates to the disciplinary proceedings (“the
adjudication”) taken against the applicant for an alleged breach of the Prison Rules.
2
The trigger for all three decisions was the applicant’s failed drug test on
27 September 2022.
Factual background
[3] The applicant is a 35-year-old man serving an indeterminate custodial
sentence with a minimum tariff of six years for nine counts on indictment, the most
serious of which was a single count of manslaughter. The applicant is now 3.5 years
post tariff, his tariff expiry beginning on 25 July 2019. Since 2019, he has had four
separate reviews of his detention by the Parole Commissioners for Northern Ireland.
Each review has determined that the applicant did not meet the test pursuant to
Article 18(4)(b) of the Criminal Justice (Northern Ireland) Order 2008, which requires
that the Commissioner shall not direct the release of a prisoner unless they are
satisfied that it is no longer necessary for the protection of the public from serious
harm that the prisoner should be confined.
[4] The Commissioner has consistently identified a requirement for the applicant
to complete a sustained period of PRT before he can be considered to be released on
licence. Due to Covid-19 restrictions, the applicant was unable to avail of PRT
between November 2019 and the summer of 2022. Since then, the applicant has
successfully completed 2 x 8 hour Accompanied Temporary Releases (“ATRS”), 3 x
8 hours Unaccompanied Temporary Releases (“UTR”) and 2 x 24 hour UTRs,
including one at Burren House on 13 September 2022. The applicant also attended a
case conference on 20 September 2022 to review his progress. A follow up case
conference was to be scheduled for 3 months later. The applicant avers that he was
scheduled to have a 48 hour UTR in November 2022 and that he expected to be
moved to Burren House by Christmas 2022.
[5] On 27 September 2022, the applicant was subject to a random drugs test
which returned as positive on 15 October 2022. The applicant immediately lost all
privileges and was informed in writing of his temporary suspension from PRT due
to a failed drug test. The letter stated that his suspension would be discussed at his
next case conference but did not specify the date of the case conference or that it
would be postponed due to the temporary suspension from PRT. The applicant was
also moved from Wilson House to Braid House, which represents a demotion within
PREPS.
[6] On the same day, the applicant was charged with an offence against prison
discipline under Rule 38(19B) of the Prison Rules, which provides:
“A prisoner shall be guilty of an offence against prison
discipline, if he … is found with any substance in a
sample taken under rule 48C which demonstrates that a
drug has, whether in prison or while on temporary
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