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Cite as: [2000] IEHC 107

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Doherty v. Governor of Portlaoise Prison [2000] IEHC 107 (24th November, 2000)

THE HIGH COURT
JUDICIAL REVIEW
No. 2000/454JR
BETWEEN
HENRY DOHERTY
APPLICANT
AND
THE GOVERNOR OF PORTLAOISE PRISON
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGMENT of the Hon. Mr Justice McKechnie delivered on the 24th day of November 2000
1. In Belfast on the 10th day of April 1998 there was done two Agreements, one made between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland and another between these Sovereign Governments and the other participants in the multi-party talks concluded thereat. The Agreement firstly mentioned is sometimes referred to as the British and Irish Agreement with the second agreement being known, and in this Judgment being referred to, as “the Multi-Party Agreement”.
2. The Agreement last mentioned, which constitutes Annex 1 of the British and Irish Agreement, opens with a Declaration of Support under pinning the entirety of the Accord so reached, and then goes on to deal with matters of grave National and International importance. These include Constitutional Issues, the establishment of Democratic Institutions in Northern Ireland, relations between Northern Ireland, Ireland and the United Kingdom and other crucially important subjects such as Human Rights, Decommissioning, Security, Policing and Justice. In addition commencing at page 30 of the Document there is a Section dealing with Prisoners. In paragraph 1 thereof, inter alia, both Governments agreed to put in place mechanisms to provide for an accelerated programme for the release of certain prisoners in certain circumstances. Pursuant to this obligation the Government of Ireland enacted the Criminal Justice (Release of Prisoners) Act, 1998 . In essence, in the above entitled Judicial Review proceedings, the Applicant seeks a Declaration that he is a “qualifying prisoner”, either within the Multi-Party Agreement or else within the provisions of the Act itself. Deserving of such recognition, it is then pleaded on his behalf, that the Minister Respondent should invoke certain procedures specified in the 1998 Act which, if so invoked, would in Mr Doherty’s hope and expectation, lead to his early release from Portlaoise Prison where presently he is lawfully detained. This Judgment therefore is concerned with the Multi-Party Agreement and with the 1998 Act.
3. In or about 1970 the Applicant, Henry Doherty, became involved in and with the Republican movement. In the years which followed he was convicted of several offences involving amongst others, possession of firearms, robbery and attempted robbery; these in both the jurisdiction of Northern Ireland and in the Republic. He escaped on at least two occasions from Long Kesh and successfully resisted one attempted extradition to Northern Ireland. In 1974 he was directly and personally involved in the establishment of the Irish Republican Socialist Party and in the I.N.L.A.. In 1981 having been convicted by the Special Criminal Court of bank robbery, he was sentenced to six years imprisonment which he served in Portlaoise. During the currency of that sentence he disassociated himself from the I.N.L.A. and from the I.R.S.P. and since then has not been associated with any paramilitary organisation. All terms of imprisonment, including those next mentioned, were and are being served by him as a non-aligned prisoner which status equally represents his continuing interest and participation in Irish political affairs. That this is so has not been disputed by the Respondents and in fact is very much relied upon by them in support of one central issue in this case.
4. On the 8th of March 1995, on a plea, Mr Doherty was convicted by the Special Criminal Court of possession of a firearm contrary to section 15(a) of the Firearms Act, 1925 as amended and extended by the Firearms Acts, 1964 and 1971, by the Criminal Law (Jurisdiction) Act, 1976 and by section 14 of the Criminal Justice Act, 1984 . He was sentenced to eight years imprisonment as and from the 9th of February of that year. On the 20th of July, again before the same Court and again on a plea, he was convicted on counts 3,4 and 5 and was sentenced to imprisonment for a period of two years on each of these counts, the said sentences to run concurrently as and from the date of expiry of the sentence imposed on the 8th of March, 1995. These counts inter alia referred to possession of a firearm giving rise to an inference of unlawful purpose contrary to section 27 of the Firearms Act, 1925 as substituted by Section 8 of the Criminal Law (Jurisdiction) Act, 1976 and, as amended both by section 14(4) of the Criminal Justice Act, 1984 and by section 4 of the Firearms and Offensive Weapons Act, 1990 . With normal remission his scheduled release date is the 8th of August 2002.
5. Being aware of the political, constitutional and legal developments in both Northern Ireland and in the Republic, Mr Doherty sought to persuade the Respondent Minister of his entitlement to early release as a qualifying prisoner under, as previously said, either the Multi-Party Agreement or the 1998 Act. To this end he was interviewed on the 20th of September 1999 by the head of Prisons Operations. This person, Mr Ruairí Gogan, informed the Applicant, firstly that having been tried before the Special Criminal Court did not in itself guarantee “qualification”, secondly that he, and therefore the Respondent Minister accepted that the Applicant was serving his sentence as a non-aligned prisoner, thirdly that both his and the Minister’s view was that the offences for which he was then and is now serving prison sentences were committed whilst non-aligned and that therefore he was not a member “ of any qualifying group or subversive organisation”. In such circumstances the application of Mr Doherty was unsuccessful. Before concluding the interview however, Mr Gogan undertook to have the Applicant’s case reconsidered.
6. Between the date of that interview and the 10th of January 2000, Mr Doherty met Mr John Kenny and Mr Gogarty both from the Department of Justice and he also entered into correspondence inter alia with the Office of the Taoiseach. Despite such efforts however, he had not, by the date of the Order next mentioned, received any decision on his request for a reconsideration. Accordingly on the 10th of January 2000 he sought and was granted by Geoghegan J, leave from the High Court to apply by way of an application for Judicial Review for an Order of Mandamus directing the Minister "(i) to respond in writing to the Applicant’s application that he be entitled to the same release conditions/considerations as the rest of the non-aligned prisoners in Portlaoise prison and (ii)to set out (a) the steps and procedures which will be adopted in respect of the said application and (b) its present status....”
7. Without embarking upon on actual hearing of the application for Judicial Review the Respondent, in compliance with the Order of Geoghegan J. wrote to the Applicant by way of letter dated the 7th of April 2000. This letter, signed by Mr Kenny from the Prisons Divisions, reads as follows:
“I refer to your recent application for early release as a consequence of the Good Friday Agreement. I confirm the position as expressed to you by Mr Gogan on behalf of the Minister that the Minister does not consider that you are a qualifying prisoner under the terms of the agreement because there is no indication that the offences for which you are currently serving a prison sentence were committed in connection with the Northern Ireland situation and you are not a member of what would be regarded as an organisation to which the arrangements specified in the agreement apply. Accordingly the Minister does not propose to refer your case to the Release of Prisoners Commission.
Any requests for release which are made on grounds unrelated to the Good Friday Agreement will of course be considered in the normal way”.

8. Being dissatisfied with the aforesaid reply and being advised that the grounds therein contained had no foundation in law, Mr Doherty instituted the present proceedings in which originally, he sought an enquiry under Article 40.4.2 of the Constitution into his continuing detention in Portlaoise Prison as well as various reliefs under Order 84 of the Rules of the Superior Courts. On the 28th of July of this year Butler J. Ordered that the Governor of Portlaoise Prison should on the 8th day of August 2000 produce before this Court the body of the said Applicant and should certify in writing the grounds of his detention. On the return date however, the Applicant did not proceed with his application for an enquiry either under Article 40.4.2 of the Constitution or at all. Instead he was given leave to apply, by way of an application for Judicial Review for the reliefs set forth at paragraph (D) (3) to (8) of the Statement grounding the Application and was so granted this Order on the grounds set forth at paragraph (E) of the said Statement. This Judgment therefore is not concerned in any way with an application for habeas corpus .
9. In summary Mr Doherty seeks:-

1. In support of his application he has filed an Affidavit sworn by him on the 27th of July 2000 and has also relied upon other documentation, including an Affidavit, presented to this Court on foot of which the aforesaid Order of the 10th of January 2000 was so made.

10. By way of reply the Respondents also rely upon Affidavits sworn in the earlier Judicial Review proceedings as well as several new Affidavits filed directly in answer to the present proceedings. In these Affidavits the grounds of opposition, or perhaps more accurately, the grounds justifying the decision as given in the letter of the 7th of April are set forth and so described.
11. As previously stated the section of the Multi-Party Agreement dealing with prisoners, is contained at page 30 thereof. This section is repeated in its entirety in the Schedule to the 1998 Act, which, it will be recalled, was the mechanism put in place by the Government of Ireland in fulfilment of its obligations as contained in the opening words of paragraph (1), namely that:-
“Both Governments will put in place mechanisms to provide for an accelerated programme for the release of prisoners...”

2. As when dealing with this Act reference is made to the relevant provisions of the Schedule thereto, it is therefore, unnecessary, at this point in the Judgment to further repeat the context thereof, though one should remain both mindful and conscience of the nature of an agreement such as the Multi-Party Agreement and also as to the manner and way in which the Schedule, by the express wording of the Act itself, comes to form part thereof.

12. The Act of 1998, which on its face came into operation on the 13th of July of that year, though the Respondents suggests one month later, inter alia in its preamble recites that it is an Act:-
“TO MAKE FURTHER PROVISION IN RELATION TO THE RELEASE OF PRISONERS OR THE REMISSION OR COMMUTATION OF THEIR SENTENCES AND, FOR THAT PURPOSE, TO ESTABLISH A BODY TO BE KNOW AS THE RELEASE OF PRISONERS COMMISSION ”, which Commission is to perform the specified functions in given circumstances as set forth therein.

13. Section 1 is the interpretative provision with the following being relevant to the issues in this case:-

3. Could I immediately observe that the 1998 Act does not confer on the Government or the Minister any power in relation to the release of prisoners or the remission or commutation of their sentences and accordingly the “power of release”, as above mentioned, relates to that power as contained in the Offences Against the State Act 1939, the Criminal Justice Act 1960 and the Prisoners (Temporary) Release Rules also of 1960. Secondly it should be noted that “qualifying prisoners” , are not as such defined in Section 1 but rather that phrase is to be “construed” in accordance with section 3(2) thereof.

14. Having established a Commission under Section 2 of the Act, S.3, because of its importance to this case is deserving where necessary of repetition. It reads as follows:-
“3 - (1) The function of the Commission shall be to advise, on being requested to so do under sub-section(2) of this section, the Minister with respect to the exercise, by reference to the relevant provisions, of any power of release in relation to prisoners mentioned in that subsection.
(2) The Minister shall, from time to time as he or she considers appropriate, request the Commission to give advice with respect to the exercise, by reference to the relevant provisions, of any power referred to in sub-section(1) of this section in relation to persons specified by the Minister to be qualifying prisoners for the purposes of those provisions (in this Act referred to as "qualifying prisoners") and the Commission shall comply with such a request.
(3) The Commission may ....
(4) In this section "relevant provisions" means those provisions of the Agreement Reached in the Multi-Party Talks which appear under the heading "Prisoners" in that Agreement and which, for convenience of reference, are set out in the Schedule to this Act”.

Section 4 then provides that “In considering whether to exercise, by reference to the relevant provisions, any power of release in relation to qualifying prisoners, the Minister or the Government, as the case may be, shall have regard to the relevant provisions and the advice concerned given by the Commission under Section 3 of this Act.”

4. Save for the Schedule the other provisions of the Act are not of immediate relevance.


5. The Schedule reads as follows:-

Schedule

6. Provisions of the Agreement Reached in the Multi-Party Talks which appear under the heading “Prisoners”.


Prisoners
  1. Both Governments will put in place mechanisms to provide for an accelerated programme for the release of prisoners, including transferred prisoners, convicted of schedule offences in Northern Ireland or, in the case of those sentenced outside Northern Ireland, similar offences (referred to hereafter as qualifying prisoners). Any such arrangements will protect the rights of individual prisoners under national and international law.
  2. Prisoners affiliated to organisations which have not established or are not maintaining a complete and unequivocal ceasefire will not benefit from the arrangements. The situation in this regard will be kept under review.
  3. Both Governments will complete a review process within a fixed time frame and set prospective release dates for all qualifying prisoners. The review process would provide for the advance of the release dates of qualifying prisoners while allowing account to be taken of the seriousness of the offences for which the person was convicted and the need to protect the community. In addition, the intention would be that should the circumstances allow it, any qualifying prisoners who remained in custody two years after the commencement of the scheme would be released at that point.
  4. The Governments will seek to enact the appropriate legislation to give effect to these arrangements by the end of June 1998.
  5. The Governments continue to recognise the importance of measures to facilitate the re-intergration of prisoners into the community by providing support both prior to and after release, including assistance directed towards availing of employment opportunities, re-training and/or re-skilling and further education”.

15. Though in the documentation as filed, the reliefs sought were under both the Multi-Party Agreement and the 1998 Act itself, nonetheless the submissions, as to reliefs, were confined solely to the implementing piece of legislation. On behalf of Mr Doherty, under this Act and particularly under the “Schedule” thereto, it was alleged:-

16. The Respondents' specific position is readily ascertainable from the contents of the letter dated the 7th of April but there more general position is also relevant, this in order to ascertain their views of, and approach to, operating the relevant portion of the Multi-Party Agreement and the said Act of 1998. And so it is instructive to examine the Affidavit evidence filed in both the original and in the present Judicial Review proceedings as well as recounting the submissions verbally urged upon this Court during the course of debate. The following emerges:-
(i) That the offences in question where not committed in connection with the Northern Ireland situation: (letter 7/4/2000 and both Affidavits).
(ii) That he is not (letter 7/4) and was not when the offence was committed (Affidavits of Mr Kenny) a member of what would be regarded as an organisation to which the arrangements specified in the Agreement apply, which organisations are more fully described in the said Affidavits as referring only to subversive organisations and
(iii) That the relevant offences were not similar offences to schedule offences in Northern Ireland, (with this ground being for the first time raised in the Statement of Opposition and in Mr Kenny’s second Affidavit), the point of differentiation being that the said relevant offences were not connected with the Northern Ireland situation and therefore on this ground alone, even if otherwise similar, could not be so regarded,
(a) The following were the resulting submissions:-
(i) The Multi-Party Agreement was reached between the participating parties in the context of the Northern Ireland situation which for several decades had involved civil, human and political strife. It is therefore an agreement which of necessity had, and had to have at its core, a penetrating connection with Northern Ireland and matters occurring therein;
(ii) The Agreement is in part a political document, in part aspirational and in part exhortative. It is general and non specific, as it had to be and though, of the first importance, it is both conditional and qualified and requires implementing measures to give concrete effect to its Policy content. See for example the last part of par. 3 and the entirety of par. 5;
(iii) The agreement, being of the type and kind as described, should not be interpreted in a manner similar to an Act of the Oireachtas as indeed it would be impossible to so do, given the style of language used, and the deliberate absence of specificy; Accordingly insofar as it is necessary to interpret any provision thereof a schematic or teleological approach should be adopted rather than and in preference to a literal approach;
(iv) The same method of statutory interpretation should also apply to the 1998 Act given the fact that its enactment was responsive to and conceived directly out of a Multi-Party Agreement. With such a method of interpretation, it being solely for the Minister, under section 3(2), to specify which persons would be “qualifying prisoners”, it is argued before the Court that in exercising this power, he, the Minister was entitled to take into account whether or not the relevant offences were connected to the Northern Ireland situation and that his negative conclusion on this point was ably supported by the evidence available to him;

7. Accordingly it is urged upon this Court that no relief should be granted to Mr Doherty.

17. In my consideration of the submissions so made it would be convenient at this stage if I were to deal with what might be described as some individual matters:-

18. Appreciating as I do the nature of the Multi-Party Agreement and the fact that reliance thereon, as a stand alone document, is not a necessary part of the Applicant's case, nonetheless in view of the Respondent's submissions I feel that I should express some views thereon.

8. In the first place I would accept that it should not be critically analysed, or minutely scoped, by the use of the available canons of construction. To do so would render impossible the making of like agreements, which are reached in principle, certainly as here where the issues are so diverse, complex, historical and yet immediate, where sensitivity and respect are crucial and where there are a multitude of parties and affected persons. Whilst every category of all agreements must be looked at individually, I am satisfied, that for present purposes, I should not view this document as I would an Act of the Oireachtas and certainly not as with a penal provision thereof.

19. In so doing it is a matter of public notariety that the Agreement emerged against the background of the troubles in Northern Ireland with both the conflict therein and situation thereat being central thereto. Though if successfully carried through it would travel a great deal further than these islands, nonetheless there would have being no need for and indeed no agreement if history had differed. So, in this way, approaching the Prisoner's section on page 30 of the document it seems to me:-
20. The above in my view represents the essential ingredients of this Section with such ingredients being evident from a careful, though not necessarily, an expert political reading thereof. In respect of the enactment of the appropriate legislation as intended , I have no doubt but that both governments were given a wide discretion and a considerable latitude in determining how the policy undervalue of the section, by their judgment, could best and most suitably be incorporated domestically in each jurisdiction. And so the 1998 Act.
21. In the interpretation of statutes the Courts, throughout the years, have laid down and established many rules, known as canons of construction, which are used and applied when embarking upon this frequently difficult task. Such canons are supplemented by certain presumptions and maxims as well as several other aids to construction. Text books have been written by learned authors and published. There therefore exists a very substantial body of jurisprudence in this area. Therefrom it has not always been easy to extract and identify a principled approach which holds good even within a limited and well defined area. However, for the purposes of this Judgment it is necessary only to refer to a limited number of salient extracts from the many authoritative decisions given in this area. The following would appear to be relevant:-
“The function of the Courts in interpreting a statute of the Oireachtas is, however, strictly confined to ascertaining the true meaning of each statutory provision, resorting in cases of doubt or ambiguity to a consideration of the purpose and intention of the legislature to be inferred from other provisions of the statute involved, or even of other statutes expressed to be construed with it. The Courts have not got a function to add to or to leave from express statutory provisions so as to achieve objectives which to the Court appear desirable. In rare and limited circumstances words or phrases may be implied into statutory provisions solely for the purpose of making them effective to achieve their expressly avowed objective”.

“In the absence of some special technical or acquired meaning the language of a statute should be construed according to its ordinary meaning and in accordance with the rules of grammar. While the literal construction generally has prima facia preference, there is also a further rule in seeking that in seeking the full construction of the section of an Act, the whole Act must be looked at in order to see what the objects and intention of the legislature where: but the ordinary meaning of words should not be departed from unless adequate grounds can be found in the context in which the words are used to indicate that a literal interpretation would not give the reintention of the legislature”.

9. See also a judgment, of the same Judge, in the People(the Attorney General) -v- McGlynn , 1967 IR 232, where, when dealing with a situation of alternative constructions being equally open, he expressed the view:-

“That alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating: and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system”

“ However it appears clearly from the judgment of Henchy J. that the approach was justified so as to avoid a ‘pointless absurdity’.

10. Again Henchy J. pursued “ the pattern and purpose” of the legislation then under consideration where he was satisfied that to do otherwise:-

“would not only be unnecessary for the attainment of that aim but would enable contracts to be unfairly or dishonestly reputed by parties who entered into them freely, willingly and with full knowledge ”.

11. It would appear that the schematic approach is justified were - in the words of Lord Reid in Luke -v- the Inland Revenue Commissioners :-

“To apply the words literally is to defeat the obvious intention of the legislation and to produce a wholly unreasonable result”, and


22. Applying the aforesaid principles my views on those parts or sections of the 1998 Act which are at the core of this case are as follows:-

23. In the aforesaid context I now turn to deal with the specific issues raised in this Judicial Review and do so in a manner which defers until last, the most difficult question, which in my view arises in the context of the first ground of refusal as specified in the letter of April 7th.
24. Ground No.2 :- namely that the Applicant is not a member of an organisation to which the arrangements specified in the Agreement apply, in effect that he is not a member of a subversive organisation.

12. In par. 2 of the Schedule to the Act, organisations and affiliations thereto are dealt with. It declares that prisoners, belonging to such organisations, shall not benefit until that organisation has established and is maintaining a complete and unequivocal ceasefire. On any view of this, before disqualification can apply, the Applicant prisoner must be a member of at least one such organisation and then, that organisation must have failed to establish or if it has, must be failing to maintain, in a complete an unequivocal way, a ceasefire. The Applicant on the undisputed, indeed on the agreed facts of this case, is not a member of any such organisation and has not being since the mid 1980's. It is impossible therefore, to see how this paragraph could apply to him. It is even more difficult to entertain the consequences of the Respondents insistence, at least prior to this hearing, of relying upon this ground. Any consideration of such a stance could only mean that a prisoner must join an illegal organisation or must maintain his membership thereof. This is to insist upon the commission of a criminal offence. No Court in a State with democratic institutions could ever stand over such a proposition. Therefore, on principle I would regret such a view. Accordingly, I am of the opinion that this requirement is unlawful and consequently is ultra-vires the powers of the Minister.

25. Ground No.3: - namely that the relevant offences are not similar offences to schedule offences in Northern Ireland.

13. Save for a construction which in my opinion is impossible to sustain, it is perhaps unnecessary to deal separately with this ground of refusal as the Applicants challenge is in respect of the decision conveyed in the letter of the 7th of April, wherein no such ground of refusal is maintained or relied upon. Nonetheless since it was discussed I should comment upon it.

14. In support of his application Mr Doherty had Padraigin Drinan swear an Affidavit on the 12th of October 2000. This solicitor practising in Belfast, averred as to her knowledge of the offences with which the Applicant was convicted and also as to her knowledge of the Northern Ireland (Emergency) Provisions Act 1973 and in particular the schedule thereof. This Schedule made offences under the Fire Arms Act (Northern Ireland) 1968 "schedule offences". She then went on to state that if the offences, of which Mr Doherty was convicted, had occurred in Northern Ireland, such offences would be "schedule offences". See par. 9(e) and (j) of the said Schedule to the Act of 1973. Subject to the following caveat, which I reject, this conclusion was accepted by Counsel on behalf of the Respondents.

26. The caveat was to the effect that even though “the similar offences” had all of the essential ingredients of the aforesaid “schedule offences”, nevertheless by reason of where such similar offences occurred, namely in this jurisdiction and not in Northern Ireland, that fact alone, was sufficient to deny similarity. I could not accept this submission as in my view location is irrelevant for this purpose, unless it could be shown that location itself was a core element of such an offence. No suggestion to that effect has been made. I would therefore also be of the view that this ground of refusal could not be sustained.
27. Ground No 1 - namely that the offences in question were not committed in connection with the Northern Ireland situation:

15. This ground in my view creates the most difficulty in this case. On behalf of the Applicant the argument was simply and straight forward. It was to the effect that since the 1998 Act does not in any of its provisions make this requirement a qualifying criteria then the Minister cannot take account of it. It is claimed that once a person was convicted of a schedule offence in Northern Ireland or a similar offence outside, then that equates with being a "qualifying prisoner", there being no room for the importation of any other element. If the intention was to expand the criteria then that should have been done expressly and within the body of the act itself. In a manner perhaps like the legislation in Northern Ireland.

28. In the North, the Northern Ireland (Sentences) Act, 1998 was enacted in compliance with the mechanism provisions of par. 1 of the said Chapter on Prisoners. In section 3 thereof a person became eligible for release if the prisoner was serving a prison sentence in Northern Ireland and if three of the four specified conditions were satisfied. Two of these are of interest. The first was that the offence in question had to be a qualifying offence as defined, and the second was that such a person could not be a supporter of a specified organisation. To be a qualifying offence, inter alia , it had to be a schedule offence and committed prior to the 10th of April, 1998. In addition however and of particular significance was the way in which the legislature dealt with sentences passed in the UK but not in Northern Ireland. Such a person had to have been convicted of what was termed an offence equivalent to a qualifying offence. The equivalent offence, by the express wording of par. 2 of the Third Schedule had to have been committed in connection with terrorism and the affairs of Northern Ireland. No such comparable ingredient is within the express wording of the 1998 Irish Act.
29. There is no doubt but that in the 1998 Act some form of wording with like affect would have been highly desirable, at least from a legal point of view. If it was so contained, certainty or a greater degree of certainty would have resulted. But for whatever reason the Oireachtas did not in its wisdom decide to fulfil its commitments in this way. Be that as it may, I must still interpret the 1998 Act and see whether, when operating its provisions, it is still within the Ministers power to specify and insist upon this, namely the 3rd ground of refusal.
30. As I have said above the Minister, under Section 3(2) has the responsibility of specifying who should be "qualifying prisoners". That part of the provision would have being quite unnecessary if the intention of the legislature was that, for the purposes of the 1998 Act, the term “qualifying prisoners” should have exactly the same meaning as that contained in the Multi-Party Agreement itself. So it must have been envisaged that he or she would not be rigidly confined to the requirements specified in par. 1. He could, it seems to me take other matters into account but on the generality of such matters I express no view as all I am concerned with, is the single issue namely, whether he could rightfully have regard to a connection between the offence and the Northern Ireland troubles.

16. As above indicated the function of the Court is to ascertain the true meaning of the relevant statutory provision and to do so in accordance with accepted canons of construction. Within that context it is permissible, in case of doubt or ambiguity, to consider the purpose and intention of the legislation as well as the statutory pattern as a whole

“ and to an extent that will truly effectuate the particular legislation or a particular definition therein”. See Inspector of Taxes -v- Kiernan , 1981 IR 117. Furthermore there is little doubt but that where an alternative construction is available I should “not opt for one which would lead to a pointless absurdity and should not literally construe the relevant passages if so to do would be to defeat the obvious and manifest intention of the Oireachtas which in turn would necessarily lead to a wholly unreasonable result ”.
31. In applying these principles to the remaining issue in this case its seems to me that I cannot ignore the matrix out of which the British and Irish Agreement emerged, how the Multi-Party Agreement was reached and the reasons for the passing and bringing into force of the 1998 Act. The one common stream linking all, focuses on and points to the troubles in Northern Ireland. Whilst such troubles have had consequences for other jurisdictions and in particular this jurisdiction, nonetheless the primary and predominant aim of these said agreements and this legislation must have been to deal with or help to deal with this situation in Northern Ireland. If it were otherwise it would mean that a person on a solo run purely for self gain with no linkage to Northern Ireland, could, if he was convicted of a similar offence in this jurisdiction avail of the early release programme. Indeed a consideration of what might be included in the phrase “similar offence”, could lead to the absurd position that a person convicted of a firearms offence arising out of a matrimonial dispute could obtain early release. I cannot believe that such a meaning would be responsive to the intention of the Oireachtas. Equally so I cannot believe that the rules of interpretation would mandate this Court to come to such a conclusion. Furthermore if such a proposition was correct, then subject to certain limitations, all such persons so convicted of unconnected offences would be released not later than two years after the commencement of the scheme. In fact entitled to release before now.
32. It follows, given these views, that I cannot agree with the submissions on this point made on behalf of Mr Doherty. I am satisfied therefore that in accordance with the proper construction and interpretation of the 1998 Act the Minister is acting intra vires in his insistence upon a connection between similar offences and the Northern Ireland Troubles. He is entitled to so do when exercising his power to specify persons “to be qualifying prisoners”, under Section 3(2) of 1998 Act. Accordingly I must reject the submissions in this regard.






dmca(454JR)Jmck1

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