A dissident republican leader sentenced to 20 years imprisonment for directing terrorism has lost an appeal against a High Court judgment refusing him early release.
Michael McKevitt (65), of Beech Park, Blackrock, Co Louth was jailed by the non-jury Special Criminal Court for 20 years in 2003, backdated to 2001, for directing terrorism and for membership of an illegal organisation styling itself as the Real IRA.
With the normal one-quarter remission generally afforded to prisoners, McKevitt is due for release from Portlaoise Prison in July 2016.
McKevitt had applied for a further 8 per cent off his sentence arguing that his participation in structured prison activities, such as art, drama, French, home economics and yoga classes, meant he was less likely to re-offend and was therefore entitled to one-third remission rather than the one-quarter generally afforded to prisoners.
The High Court ruled last year that the Minister for Justice was entitled to refuse McKevitt’s application for one-third remission and he sought to appeal that decision last month.
In a written judgment dismissing his appeal, Ms Justice Mary Irvine said the Minister was entitled “not to close her mind to other relevant and possibly more dominant” material concerning McKevitt’s likelihood to re-offend, including garda advice.
McKevitt has been serving his sentence on the “E2 ‘Republican’ Landing of the prison”, an area reserved for republican prisoners which had been in existence since the 1980s, the judgment stated.
There were 13 prisoners on the landing at times relevant to these proceedings who “operated quasi-military structures reflecting their membership or relationships to the proscribed organisation”.
“Those prisoners look after their own living area and roster work to be done in relation to health and safety, food management and cleaning duties. This is not an official arrangement and is not overseen by the Governor.”
Despite being disciplined twice in 2001 and 2004, McKevitt claimed his conduct has been good and that his positive influence on the E2 prisoners categorised him as having “enhanced” status within the prison, the judgment stated.
Apart from engaging in work on the landing, he has participated in “Computers, Web Design, Photoshop, Digital Imaging, French, English, Creative Writing, Speech and Drama, Music, Art, Home Economics and Yoga.”
Central to McKevitt’s appeal was that the High Court incorrectly held that the Minister’s discretion was not confined solely to a consideration of a prisoner’s involvement in authorised structured activities and that the Minster could not weigh different forms of activities differently.
Speaking on behalf of the Court of Appeal, Ms Justice Mary Irvine said the responsibility to grant enhanced remission carries great weight because it could prematurely end a sentence imposed by the courts.
“It has very serious consequences not only for the prisoner but the community at large.”
It seemed a “radical argument” to propose, as McKevitt had done, that engagement with “some” authorised structured activity was enough to grant enhanced remission on the supposition that the prisoner is thereby less likely to re-offend “even though there may be no apparent correlation between those activities and the prisoner’s history of offending”.
It was even more difficult to accommodate that construction if the Minister was entitled to consider the garda’s advice that the prisoner was, in their view, likely to re-offend.
It did not follow that the desired objective of an “authorised structured activity” would result in the prisoner being less likely to re-offend — “it must surely depend on individual circumstances of that offender”.
The Court of Appeal was satisfied that Mr Justice Kelly correctly construed the nature and extent of the Minister’s discretion under the rules.
If the Minister only had to consider whether a prisoner of good conduct had meaningfully engaged in an authorised structured activity, it would be akin to a “‘box ticking’ administrative function” and as such would be hard to see why the Minister would have provided for their own involvement in such a process, the court found.
“Such a role is one that hardly justifies Ministerial involvement”.
Ms Justice Irvine said an “illogicality” and the “potential for injustice” would arise from the construction advanced by McKevitt.
For example, if two prisoners, who committed violent crime where alcohol was the trigger, had applied for enhanced remission and only one had become a member of Alcoholics Anonymous while the other had done creative writing, the Minister would have no option but to treat them equally.
To construe the rules in this manner would be to undermine the policy behind them, the court stated.
Ms Justice Mary Irvine, who sat with President of the Court of Appeal Mr Justice Seán Ryan and Mr Justice John Edwards, dismissed the appeal.