07 April 2014

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.