Mr Justice Treacy,
sitting today in the High Court in Belfast,
dismissed an application for leave to apply for judicial review from a prisoner
who was refused permission to move to the Loyalist Wing.
Colin Kingsberry (“the
applicant”) is a sentenced prisoner at HMP Maghaberry who applied to be moved
to the Loyalist Separated Wing at Bush House.
His application was refused on the basis that he did not satisfy all the
relevant criteria, and in particular criteria (d) which requires that “he is a
member or supporter of a proscribed organisation connected with the affairs of Northern Ireland”. He challenged the decision contending it was
based solely on a confidential report from the PSNI. He sought a declaration that the Prison
Service policy for processing applications was unreasonable, unfair and did not
take into account all relevant factors.
The Court heard details
of the criteria for admission to the male separated landings in Bush House and
that when determining applications for transfer NI Prison Service (“NIPS”)
officials will seek a report from the PSNI about the prisoner’s associations
and affiliations based on the information they may hold about him. The Court was told that the PSNI report is
not the only source of information received or considered by NIPS and representations
will frequently be received from the prisoner or others on his behalf including
family members, associates or political representatives. It was further noted that the practice of
obtaining a PSNI report is in accordance with the advice of the Prisoner
Ombudsman who recommended that evidence of a prisoner’s paramilitary
affiliation should be received or verified by PSNI or other intelligence
agencies. In the event that a prisoner believes that
criteria have not been correctly applied the Ombudsman can be asked to carry
out an independent investigation.
The Governor who is Head
of Security Information Branch within NIPS told the Court that he determined
the applicant’s appeal and decided to refuse it on the ground that he was not a
member or supporter of a proscribed organisation. He said he relied upon the PSNI report but
also took into account further representations made by the applicant’s
solicitor that the applicant was a member of a flute band, he had been
convicted of a serious sectarian attack, he had attended various events
connected with the UVF and had been the subject of a sectarian attack while on
remand in prison.
Mr Justice Treacy
referred to the applicant’s assertion that the NIPS rely solely on the PSNI
report and said:
“This
assertion is just that – an assertion. I
do not accept that the material before the courts supports, even arguably, the
existence of such a policy.”
He referred to the
information submitted by the applicant’s solicitor and the reply from NIPS
which stated, inter alia, that “based on all
relevant factors and information to hand your client does not meet all of the
required criteria for separation”. The
judge said that this letter and the Governor’s affidavit put the matter “beyond
any doubt”.
Mr Justice Treacy went
on to say that it was obvious that the report from the PSNI would normally
attract substantial weight but he was satisfied that the NIPS had considered
all relevant information on the issue.
He added that it is important that the NIPS receive independent
verification of affiliations asserted by the prisoner not least because there
are a number of reasons why a prisoner may seek to manipulate circumstances to
get a transfer to a regime he may consider to be more favourable. He held that he could see no unfairness in
the procedures that were adopted and if a prisoner believes that the criteria
have not been correctly applied he can complain to the Prisoner Ombudsman.
Mr Justice Treacy
concluded that the application had not established any arguable grounds and
dismissed the application.