THE HIGH COURT
		1996 No.  651 S.S.
IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION
BETWEEN
JOHN GALLAGHER
		APPLICANT
AND
THE DIRECTOR OF THE CENTRAL MENTAL HOSPITAL
		RESPONDENT
AND BY ORDER
THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL
		NOTICE PARTIES

Judgment of Miss Justice Laffoy delivered on the 6th day of September 1996

	Article 40.4.1 of the Constitution provides that no citizen shall be deprived of his personal liberty save in accordance with law.  Article 40.4.2 enjoins this Court, upon a complaint being made that a person is being unlawfully detained, to forthwith inquire into the complaint and after giving the person in whose custody he is detained an opportunity to justify the detention, to order the release of such person from such detention unless satisfied that he is being detained in accordance with law.  It is well settled that the expression "in accordance with law" in Article 40.4 does not mean simply in accordance with a statutory provision; adopting the words of Henchy J. in King -v- Attorney General (1981) I.R. 233, it means 
	"without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution."

	On this inquiry under Article 40.4.2, the Notice Parties seek to justify the detention of the Applicant by the Respondent in the Central Mental Hospital in reliance on, inter alia, an Order of the Central Criminal Court made on 19th July, 1989, as amended by an Order of the Central Criminal Court made on 17th December, 1990 and confirmed by a decision of the Supreme Court delivered on 12th February, 1991.  The Order dated 19th July, 1989 was made consequent on a special verdict returned pursuant to Section 2(1) of the Trial of Lunatics Act, 1883 (the 1883 Act) by the jury at the trial of the Applicant for the murders of Anne Gillespie and Annie Gillespie to the effect that the Applicant was guilty of the acts charged but insane at the time of the commission of the acts alleged.  By the combined operation of the Orders dated 19th July, 1989 and 17th December, 1990, it was ordered, pursuant to Section 2(2) of the 1883 Act, that the Applicant be kept in custody as a criminal lunatic to be detained in the Central Mental Hospital until the pleasure of the Government of Ireland is known.
	The true construction of the provisions of Section 2 of the 1883 Act and the effect of the special verdict and of the Orders of the Central Criminal Court have already been considered by the Supreme Court in Application of Gallagher (1991) 1 I.R. 31.  As to the effect of the special verdict, McCarthy J., with whom the other members of the Court concurred, stated as follows at page 37:-

	"The overriding circumstance is that the special verdict is a verdict of acquittal; the trial is concluded; the Court does not pronounce a sentence; the role of the Court is to order the detention of the person, the former accused, until the executive, armed with both the knowledge and resources to deal with the problem, decides on the future disposition of the person.  At that stage also, the Director of Public Prosecutions ceases to have his ordinary statutory role.  The result of the prosecution has been an acquittal but the statute which permits the special verdict requires that the former accused be detained at least for some minimum time."

The effect of the Order made under Section 2(2) of the 1883 Act was stated in the following passage at page 38:-

	" ..... immediately after the making of the Order ..... the role of the executive arose -  to provide an appropriate place for the safety of the accused in such place and in such manner as the executive thought appropriate, until such time as the executive was satisfied that having regard to the mental health of the accused it was, for both public and private considerations, safe to release him.".

Later in the judgment, McCarthy J. outlined the manner in which an application for release by a person detained under Section 2(2) should be dealt with and stated as follows:-

	"If and when a person detained pursuant to Section 2, subsection (2) of the Act of 1883 seeks to secure release from detention, as in the instant case, he may apply to the executive, as has been done in the instant case, for his release on the grounds that he is not suffering from any mental disorder warranting his continued detention in the public and private interests.  Then the executive, in the person of the Government or the Minister for Justice, as may be, must inquire into all the relevant circumstances.  In doing so, it must use fair and constitutional procedures.  Such an inquiry and its consequences may be the subject of judicial review so as to ensure compliance with such procedures."

	The two passages from the judgment of McCarthy J. quoted above which deal with the effect of the Order made under Section 2(2) of the 1883 Act, in my view, contain a comprehensive, clear and unambiguous statement of -

(i)	the permitted duration of detention under the Order - until such time as, having regard to his mental health, it is, both for public and private considerations, safe to release the Applicant, but no longer,

(ii)	the decision-maker as to the duration of the detention - the executive, and

(iii)	the nature of the function of the decision-maker - an executive function exercisable with due regard to the principles of natural and constitutional justice, which is subject to judicial review.

	This inquiry arises out of the Applicant's third application to the executive for his release since the decision of the Supreme Court.  At the core of the controversy between the Applicant and the Notice Parties as to the conduct and outcome of the proceedings on that application is a dispute as to the test which the Supreme Court stipulated should be applied by the executive in determining the duration of the detention of a person under Section 2(2) of the 1883 Act.  Counsel for the Applicant submitted that a single, and largely clinical, test is to be applied and it is whether the person is suffering from a mental disorder such as to warrant his continued detention.  The proper approach, it was submitted, is to consider first whether the Applicant is suffering from a mental disorder.  If he is, one then considers whether it is a disorder such as to warrant his continued detention.  The mental condition must be one which is present and persistent.  Account may be taken of future dangerousness only as a component of the person's mental condition, not divorced from it.  Counsel for the Notice Parties, on the other hand, submitted that the key criterion is whether it is safe to release the person.  In determining whether it is safe to release or not, the executive is entitled to have regard to both the past and present health of the person and the prognosis.  Detention under Section 2(2) may lawfully continue if the person detained is dangerous but not mentally ill.
	In my view, there is no inconsistency between and the same test is posited in the two passages from the judgment of McCarthy J. quoted above which deal with the effect of an Order under Section 2(2) of the 1883 Act, although slightly different formulae are used in them.  The portion of the judgment which intervenes between the two passages, in which there is reference to Section 165 of the Mental Treatment Act, 1965 and the judgment of the Supreme Court In Re: Philip Clarke (1950) I.R. 235, in my view, was intended as a commentary on the nature of the role of the executive in determining the lawful duration of the detention - that it is the exercise of an executive function rather than a judicial power - rather than on the task the executive has to perform.  That task is expressed in both passages in plain non-technical language and the terms "mental health" and "mental disorder" are clearly not intended to have technical meanings ascribed to them.  It is to determine whether by reason of mental ill health the person currently constitutes such a risk or danger to the public or to a section of the public or to himself that he should be detained.  Mental ill health in this context encompasses all forms of mental illness and disorder recognised by psychiatry: major illnesses, such as schizophrenia and manic depression; lesser mental illnesses or neuroses; and personality disorders.  The foundation of such a determination is the evidence of experts, such as psychiatrists and psychologists, as to the current clinical condition of the person, his past clinical condition and behaviour being relevant only insofar as they are relevant to an assessment of his current mental condition.
	The test contended for by Counsel for the Notice Parties, dangerousness whether attributable to mental ill health or not, fails to take account of the clear requirement in the formulation of the test by the Supreme Court which links continued detention or release to the existence or non-existence respectively of mental ill health.  Furthermore, to construe Section 2(2) of the 1883 Act as permitting detention while a person is dangerous but not mentally ill would be to construe it as permitting deprivation of liberty for the purpose of preventing possible future criminal activity or deviant behaviour, in other words, preventive detention, which is a construction which is impermissible under the Constitution (The People (Attorney General) -v- O'Callaghan (1966) I.R. 501 and Ryan -v- Director of Public Prosecution (1989) I.R. 399) and cannot have been intended by the Supreme Court.
	In broad outline, while accepting that his committal to detention in the Central Mental Hospital under the Orders of the Central Criminal Court was lawful, the Applicant's case is that the processing by the executive and the outcome of his third application for his release were so fundamentally flawed and unlawful as to vitiate the legality of his detention, entitling him to immediate release.  The Applicant was constrained to advance this argument and seek his immediate unconditional release because of the nature of the remedy afforded by Article 40.4.2 and the limited relief which it is open to the Court to grant when that remedy is invoked, as explained by Finlay C.J. obiter in the following passage from his judgment In Re: D. (1987) I.R. 449 at page 457:-

	" .... on my understanding of the provisions of Article 40, section 4, sub-section 2 of the Constitution, the High Court on the hearing of an application pursuant to that sub-article must reach a single decision, namely, whether the detention of the person concerned is or is not in accordance with law.  If it is, then the application must be refused.  If it is not, the person must be discharged from the custody in which he is.  Such a procedure does not appear to me to admit of any supervision or monitoring of the interests of the person concerned, even allowing for a condition of mental retardation or other want of capacity."

	The remedy the Applicant has invoked and the basis on which he supports his claim to immediate relief raises an issue of principle as to the nature of an irregularity, breach of rights or defect in the adjudication by the executive of an application by a person detained under Section 2(2) of the 1883 Act which will render his detention unlawful and entitle him to immediate release.  The authorities give little guidance on this issue.  It seems to me that a range of factors come into play in consideration of the issue.  First, there must be a recognition that the special verdict of the jury has given the person the status of an acquitted person.  Secondly, there must be a recognition that the underlying basis of the detention, the finding of past insanity by the jury, places the person in a class of persons the protection of whose rights under the Constitution must be of particular concern to the organs of State established by the Constitution.  As Costello P. said in R.T. -v- Director of the Central Mental Hospital (1995) 2 I.R. 65, in considering whether Section 207 of the Mental Treatment Act, 1945 was unconstitutional, at page 79:-

	" .... the State's duty to protect the citizen's rights becomes more exacting in the case of weak and vulnerable citizens, such as those suffering from mental disorder.  So, it seems to me that the constitutional imperative to which I have referred requires the Oireachtas to be particularly astute when depriving persons suffering from mental disorder of their liberty and that it should ensure that such legislation should contain adequate safeguards against abuse and error in the interests of those whose welfare the legislation is designed to support."

Thirdly, account must be taken of the purpose of the detention and whether that purpose has been adequately fulfilled, so that the necessity which justified it no longer exists, or alternatively, whether the purpose remains unfulfilled to an extent that continued detention is mandated.  In the case of detention under Section 2(2) of the 1883 Act, the purpose of such detention is to be inferred from the test to be applied in determining the duration of the detention:  it is to protect the public and/or the person detained from risk and dangerousness attributable to the mental ill health of that person.  In his judgment in Application of Gallagher, McCarthy J., at page 37, characterised detention under Section 2(2) in general terms as "the carrying out of the executive's role in caring for society and the protection of the common good".  This echoes the characterisation of the provision of Section 165 of the Mental Treatment Act, 1945, the validity of which was in issue in In Re: Philip Clarke (1950) I.R. 235, as "paternal" and as "clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well-being of the public generally" (per O'Byrne J. at page 247).  Fourthly, the gravity of the irregularity, breach or default falls to be considered and whether it can be appropriately redressed by a less radical remedy than immediate release.  For instance, an order of mandamus directing the executive to hold a new inquiry and in its conduct to adhere to fair and constitutional procedures should in most cases constitute an appropriate redress of a breach of the audi alteram partem rule.
	Without suggesting that the foregoing is an exhaustive catalogue of the factors, constant and variable, which fall to be considered in determining whether an irregularity, a breach or a default is so fundamental as to cross the threshold and taint the detention with illegality so that it is no longer detention in accordance with law, in my view, all of those are factors which must be weighed in the balance in resolving that issue.
	The Applicant's third application to the executive for his release was referred by the first named Notice Party (the Minister) to the Advisory Committee established by the Government in September, 1991 to advise the Minister on applications for release from the Central Mental Hospital of persons found guilty but insane.  The Advisory Committee, which comprised a senior counsel, who was its chairman, a consultant psychiatrist and a general medical practitioner, reported to the Minister on 31st July, 1995.  In its report, the Committee recited the materials it had considered and the persons it had interviewed, including the Respondent and Dr. Don Lydon.  The Advisory Committee then recorded its finding in the following terms:-

	"The Committee is of the unanimous view that Mr. Gallagher would not be a potential danger to any member of the public if he were released for limited periods of freedom in the immediate future."

The Advisory Committee then made the following recommendations in the following terms:-

	"The Committee recommends that a programme of limited periods of freedom be instituted on a trial basis.  These periods should be carefully monitored and conditions (such as a ban on alcohol consumption or substance abuse) should be imposed.	
	The Committee recommends that Mr. Gallagher's case should be reviewed following the implementation set out in the paragraph immediately above and after a period of one year from this date.".

	The Applicant acknowledged that the Advisory Committee acted scrupulously in accordance with fair procedures and he did not seek to impugn either the finding of the Advisory Committee or its recommendations.  The Applicant's complaint focused on the conduct of the Minister following receipt of the Advisory Committee's Report.
	The Minister's conduct of the processing of the Applicant's application after receipt of the Advisory Committee's report, as reflected in communications from her Department and other State agencies to the Applicant and his legal advisers, can be summarised as follows:-

(a)		On 6th December, 1995 the Department sent the Respondent a copy of a letter from the Minister's Private Secretary to the Chairman of the Advisory Committee for transmission to the Applicant and advised that the Applicant would be informed, through the Respondent, of "any decision of the Minister".  The letter to the Chairman of the Advisory Committee recorded the Minister's interpretation of the Committee's reference to releasing the Applicant "on a trial basis" as indicating that the Committee have residual doubts as to his suitability for release and that caution should be exercised.  The letter continued as follows:-

				"Consistent with the need for caution, the Minister interprets the Committee's advice that Mr. Gallagher be afforded 'limited periods of freedom' to mean that Mr. Gallagher might reasonably be granted short, but supervised periods of freedom from time to time, subject to conditions to be determined by the Minister as appropriate .....

				The Minister is of the view, therefore, that a limited programme of outings for Mr. Gallagher with C.M.H. staff alone, initially, and at a later stage following review of such outings, with members of his family and C.M.H. staff, should now be considered for him.  She would not envisage journeys outside the Dublin area during these outings .... 

				In the event that the initiative is proceeded with (i.e. supervised outings and renewal of education offer), the Minister would intend that a progress report would issue to the Committee in good time for its midsummer review of Mr. Gallagher's situation."

		That letter was framed in such a way as not to elicit a response and there was 			no response to it.

(b)		By letter dated 21st December, 1995 the Applicant was told that the Minister was "still considering the advice about your future she has received from the Review Committee".  The Applicant was asked to carefully reconsider the offer of educational/rehabilitative work training opportunities at the Central Mental Hospital under the auspices of the South Dublin VEC and it was indicated that the Minister would wish to have his response to enable a fully informed decision to be made in his case.  The Applicant did not respond.

(c)		Following the institution of this inquiry on 22nd April, 1996, Points of Defence were filed on behalf of the Notice Parties on 14th May, 1996.  In the Points of Defence it was pleaded that

	           	 (i) 		it was accepted that the letter of 6th December, 1995 amounted to a refusal of the Applicant's application for unconditional release, 

	          	 (ii)		the Minister had decided to accept the advice of the Advisory 			Committee and to proceed to commence a limited programme of 			outings for the Applicant which would be carefully monitored and 			regulated by the imposition of appropriate conditions,

		(iii)		by a decision of 8th May, 1996 the Government noted and agreed the 		approach the Minister proposed to adopt, 

		(iv)		the decision was conveyed to the Applicant on 14th May, 1996, and

	 	 (v)		the Applicant is in lawful custody by virtue of orders of the Central 		Criminal Court and "the decision of the Minister for Justice to adopt 		the advice of the Advisory Committee which said advice has been 			approved by the Government of Ireland".

(d)		Contemporaneously with the filing of the Points of Defence the Department wrote to the Applicant's solicitors apprising them that

				"the Government noted and agreed ..... the approach the Minister intends to take in relation to the report dated 31st July, 1995 of the Advisory Committee."

		There followed a re-statement of the Minister's view that a limited programme of outings for the Applicant should be considered in the same terms as expressed in the letter of the 30th November, 1995 to the Chairman of the Advisory Committee and a proposed programme of outings was then outlined in the following terms:-

				"In particular, she proposes a programme of outings along the following lines to Mr. Gallagher over the next six months;

					June-November - one escorted outing one day each month accompanied by C.M.H. staff;
				December 1996  - one escorted outing plus family outing in 					Dublin area at Christmas accompanied by C.M.H. staff."

			It was pointed out that authorisation for a particular outing would be contingent on satisfactory outcome of previous outings and that the programme would by reviewed by the Minister at the end of the six month period in the context of the outcome of outings to that date and all the advice available to her.

(d)		In the course of inter partes correspondence in connection with this inquiry, the Chief State Solicitor wrote to the Applicant's solicitors on 15th July, 1996 in the following terms:-

			"....  you might please note that it is not the Minister's intention to consider your client for discharge from hospital on a 'phased release' basis.  The Minister has approved a limited programme of outings for Mr. Gallagher over the coming months.  The term 'phased release' has not been used in this or any other context".
		
		Counsel for the Applicant contended, in my view with some justification, that there is a lack of clarify as to what decision the Minister made.  In an Affidavit filed in these proceedings sworn on 14th June, 1996 a Principal Officer of the Department of Justice, having referred to the commencement of this inquiry on 22nd April, 1996, went on to aver as follows:-

	"I say that the Minister for Justice decided to consult with the Government and seek the agreement of the Government to the approach adopted by her in adopting the Advisory Committee's report of July 1995, i.e. to proceed to commence a limited programme of escorted outings for the Applicant which would be carefully monitored and regulated by the imposition of appropriate conditions and in that regard I say that the Minister submitted an aide memoire to the Government on the 8th day of May, 1996 and I say on foot thereof the Government approved the said course of action by decision made on the 8th day of May, 1996 ....".	

	On the basis of the evidence, including what is revealed in the considerable amount of internal departmental documentation which has been put in evidence, I find that no decision was made by the Minister on the Applicant's application for release until after 22nd April, 1996.  I find a decision was made by the Minister on the application between 22nd April, 1996 and 8th May, 1996 and that this decision was precipitated by the institution  of this inquiry.  The decision was to accept the advice of the Advisory Committee, which I understand to entail an adoption of the finding made by the Advisory Committee and a commitment to implement its recommendations, the means of implementation to be the programme of outings, details of which were subsequently notified to the Applicant.  The Government approved that decision.  While I am unsure of the true import of the statement in the letter of 15th July, 1996 that it is not the intention of the Minister to consider the Applicant for discharge on a "phased release" basis, I do not interpret it as a resilement from the decision to accept the Advisory Committee's advice.  In the aide memoire for Government, it was stated that the Minister intended to inform the Court in these proceedings "of her decision to commence the programme of temporary release".
	When this matter came to hearing on 17th July, 1996 the factual position, accordingly, was that the Minister had decided to accept the advice of the Advisory Committee.  This decision was approved by the Government.  In implementation of the recommendation of the Advisory Committee, the Minister had proposed the programme of outings to the Applicant and had undertaken to review the matter at the end of the programme.
		The specific grounds relied on by the Applicant at the hearing in support of his contention that his detention in the Central Mental Hospital is no longer in accordance with the law were as follows:-

(1)		It was submitted that there had been a culpable failure on the part of the Minister to address and decide the central issue which arose for decision on the Applicant's application for release, namely, whether he was suffering from any mental disorder warranting his continued detention in the public or private interest, and that this failure rendered his detention unlawful and unjustified.  In the light of the factual situation which prevailed at the time of the hearing, in my view, that ground is not sustainable.  The Minister decided, albeit belatedly, to accept the advice of  the Advisory Committee.  While the Advisory Committee did not spell out in express terms its finding on the central issue, it is implicit in its finding that it was not satisfied that the state of the Applicant's mental health is such that it is safe to grant and that he should be granted immediate unconditional release.  This is implicit in the fact that the Committee recommended only limited periods of freedom and only on a trial basis, that the periods of freedom should be monitored and that the matter should be reviewed in a year.  In my view, it must be inferred that in accepting the Advisory Committee's advice and in adopting its finding, the Minister concluded that the Applicant is suffering from a mental disorder warranting his continued detention.  
		The Applicant has not impugned the finding of the Advisory Committee and, in my view, it is not open to the Applicant to challenge the Minister's decision to accept that finding.  Moreover, on the basis of the evidence adduced of the material before and the deliberations of the Advisory Committee, the finding of the Advisory Committee and its recommendations based on that finding were consistent with the evidence before it and could not be successfully challenged.

		It was further submitted that there has been a breach of the Applicant's rights in that he was entitled to, but did not get, a prompt decision on his application.  In accordance with fair and constitutional procedures, the constitutionally protected right at issue being the fundamental right to liberty, the Applicant was entitled to a reasonably prompt decision on his application but he did not get it.   In my view, his failure to respond to the request in the letter of 21st December, 1995 that he reconsider the offer of educational/rehabilitative work training opportunities does not justify the failure to make a decision on his application until May 1996.  In my view, the Minister has no power to require the Applicant to give a commitment to embark on an educational or training programme as a precondition to a decision on his application for release.  No other justification for the delay was advanced and none is discernible on the evidence.  However, while the delay has infringed the Applicant's rights, the infringement is not of the order to render his detention unlawful and it has been rectified, the decision having been made.

		It was also submitted that the Applicant's constitutional rights have been violated because he has not been given a reasoned decision on the central issue.  The Minister, in adopting the finding of the Advisory Committee, adopted its reasons for that finding.  Although the Advisory Committee did not set out the reasons for its finding and for its recommendations in express terms in its report, it is implicit that the basis of its conclusion was that a programme of limited periods of freedom required to be instituted on a trial basis before a decision to allow greater periods of freedom or release could be made.  If there was any breach of the Applicant's rights by reason of the failure to give him a reasoned decision, and in my view there was not, that breach would not be of the order to render his detention unlawful.
						
(2)		It was submitted that the procedure adopted by the Minister was flawed and unfair.  The gravamen of this ground is that the Minister had regard to representations, documentation and advice which were not disclosed to the Applicant and which he did not get an opportunity to comment on.  In particular, concern was expressed that the Minister had received representations from and met with and gave assurances to relatives of the victims and that she had received petitions and letters opposed to the release of the Applicant from members of the public.  In my view, the fact that the Minister has accepted the Advisory Committee's advice is a complete answer to this contention, given that it is acknowledged that the Committee acted scrupulously in accordance with fair procedures and that it must be inferred from her acceptance that the Minister was not influenced by any extraneous factor or influence.  Apart from this, in my view, the Applicant's reliance on the decisions of the Supreme Court in Murphy -v- Dublin Corporation (1972) I.R. 315 and Geraghty -v- The Minister for Local Government (1976) I.R. 153 is misplaced.  The function of the Minister in adjudicating on an application such as the Applicant's application is an executive function exercisable with due regard to the principles of natural and constitutional justice as was held by McCarthy J. in Application of Gallagher and by Lardner J. in Kirwan and the Minister for Justice  (1994) 1 ILRM 444.  If the Minister had intended to depart from the advice of the Advisory Committee, the Applicant would have been entitled to have all new material which was not before the Advisory Committee and which was before the Minister disclosed to him and he would have been entitled to an opportunity to comment on it.  I do not think it would have been necessary for the Minister to disclose the petitions and letters she or her department had received from members of the public generally, who did not have an involvement in the circumstances which gave rise to the particular application before the Minister.  However, I consider that different considerations would have applied to representations from and deliberations with and assurances given to proponents of a point of view inimical to the Applicant who had such an involvement.  Disclosure would have to have been made and a right of reply afforded, although this approach might not be sufficient to meet an allegation that could arise that bias or pre-judgment was to be inferred.  I stress, however, that no such inference arises in this case.

(3)		It was submitted that decision of the Minister was made on an erroneous basis in law.  It was in developing this ground that the issue of the correct test to be applied in determining an application such as the Applicant's application was debated.  I have already set out my views as to the proper test to be applied.  The fact that the Minister has accepted the advice of the Advisory Committee is also a complete answer to this ground, because the finding of the Advisory Committee has not been challenged and, in any event, there is no evidence whatsoever that the Advisory Committee proceeded on an erroneous basis in law.

(4)	It was submitted that, if the Minister, as the basis for the future disposition of the Applicant, had concluded that he is currently suffering from a mental disorder such as to warrant his detention, then such conclusion would be irrational as being manifestly against the weight of the evidence and could not be permitted to stand, if founded on the evidence at the trial or the conclusions of the Advisory Committees which had considered the Applicant's earlier applications.  Although the documents discovered indicate that the Minister had reservations about the advice she received from the Advisory Committee in November 1995, the nature of which were not revealed in evidence, the decision which the Minister ultimately came to was to accept the advice of the Advisory Committee, which entails an acceptance of the finding of fact made by the Advisory Committee.  The charge of irrationality seems to comprehend a conclusion that the Minister might have reached, rather than the actual basis of her decision.  The Minister made a rational decision in accepting the advice of the Advisory Committee, which advice is not impugned on this inquiry.

(5)	The Applicant conceded that it is open to the Minister to make a decision to release the Applicant on a phased basis.  However, it was contended that the programme of outings proposed by the Minister is not a phased release, that is to say, a scheme designed to achieve the objective of the Applicant's release in the most effective way, subject, however, to monitoring and review in that -

	(i)	there is no suggestion that the frequency of outings will be increased,

	(ii)	the programme only offers 18 hours of freedom out of 4,368 hours of detention, 

	(iii)	the frequency of the outings contrasts extremely unfavourably with the treatment meted to other persons who have been found guilty but insane, and

	(iv)	the proposed outings are so minimal as to amount to no release at all.

	It was also contended that the programme offended the principle of proportionality in that the period of the proposed outings could not provide any significant useful information on the review by the Advisory Committee.
	
	The application of the principle of proportionality is inherent in the construction of Section 2(2) of the 1883 Act stipulated by the Supreme Court in Application of Gallagher, in that detention under that provision is permitted only so long as is necessary to achieve the objective of the provision.  It follows, in my view, that when, on consideration of an application for release from detention under Section 2(2), a relaxation of total deprivation of liberty is indicated for a particular purpose, the relaxation put in train must be proportional to that purpose.  Furthermore, in this case, the Notice Parties have justified the continued detention of the Applicant in part on the adoption of the advice of the Advisory Committee. That being the case, in my view, the Applicant is entitled to have the recommendations of the Advisory Committee properly implemented in accordance with the Advisory Committee's intentions, not merely the Minister's interpretation of them.  This involves the Applicant being afforded limited periods of monitored freedom consistent with the finding of the Advisory Committee and of sufficient frequency and duration to test him in a non-institutionalised environment for the purpose of aiding the determination of the central issue, whether he is suffering from a mental disorder warranting his continued detention, on the promised review by the Advisory Committee.  While it is for the Minister, not the Court, to devise a scheme for the implementation of the recommendations of the Advisory Committee, such implementation is within the ambit of judicial review.  

	The Minister did not seek the advice of the Advisory Committee as to the adequacy of the proposed programme, nor did she seek the advice of the Respondent, who has been responsible for the Applicant's clinical care since January 1995.  While it must be accepted that there is certain expertise in the Minister's department in the area of parole and of temporary release from the Central Mental Hospital, given the nature of the test which the law requires the executive to apply in determining the permitted duration of detention under Section 2(2), it would have been prudent to have sought the assistance of the Advisory Committee in devising the scheme.  An alternative prudent course would have been to seek the advice of the Respondent and to allow the Applicant an opportunity to comment on that advice.

	Although, in the evidence some doubts were raised as to the sufficiency of the frequency and duration of the proposed periods of freedom, in my view, if this issue was arising on an application for judicial review, there would not be a basis for quashing the element of the Minister's decision in relation to the manner of implementation of the recommendations of the Advisory Committee having regard to the evidence adduced.  Moreover, even if the Applicant could make the case that that element of the Minister's decision is bad in law, in my view, this would not give rise to an entitlement to immediate release on the basis that the detention was no longer lawful.  The matter would be more appropriately addressed by an order of mandamus.

	The most compelling evidence, in my view, which emerged on this hearing is the report of the Advisory Committee from which it is to be inferred that that independent expert group concluded that the protection of the public at this time requires that the Applicant should not be granted any greater freedom than the periods of freedom recommended by it and on the basis recommended.  Insofar as the Applicant's grounds of challenge to the Minister's decision are sustainable, in my view, they fall way short of establishing that the decision-making process and the decision were so fundamentally flawed and unlawful as to vitiate the legality of the Applicant's detention.
	Despite the State's apparent antipathy to the word "release", as evidenced by the letter dated 15th July, 1996, the executive, in accepting the Advisory Committee's advice is committed to a programme, which, if successful, must inevitably lead to more frequent and longer periods of freedom for the Applicant and may ultimately lead to release.  However, it is impossible to predict if the process will be successful or how long it will take.