THE HIGH COURT
			JUDICIAL REVIEW
			No. 513 JR 2000
BETWEEN
DESMOND O’HARE
			APPLICANT
AND
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM IRELAND AND THE ATTORNEY GENERAL 
			RESPONDENTS
JUDGMENT of Mr. Justice Aindrias Ó Caoimh delivered the 10th day of August, 2001.
	By Order of the High Court (Mr. Justice Butler) dated the 25th September, 2000 the Applicant was given leave by this Court to seek the following reliefs by way of an application for Judicial Review -
1.	An Order of Mandamus directing the Minister for Justice Equality & Law Reform to forthwith release the Applicant from Portlaoise Prison under the terms of the Agreement reached in the Multi-Party Talks (The Belfast Agreement) dated the 10th April 1998.
2.	Further and/or in the alternative an Order of Mandamus directing the Minister for Justice Equality & Law Reform to make a decision on the Applicant’s application for release under the terms of the Agreement reached in the Multi-Party Talks (The Belfast Agreement) dated the 10th April 1998.
3.	A Declaration that the Applicant is entitled to be released under the terms of the Belfast Agreement from in or around the end of July 2000.
4.	A Declaration that the Minister for Justice Equality & Law Reform is obliged by law to consider the Applicant’s application for release under the terms of the Belfast Agreement within a reasonable period from the date of application.
5.	A Declaration that the Applicant has been unlawfully detained from in or about the end of July 2000 given the fact that all qualifying prisoners should be released within two years of the date of the coming into effect of the Prisoner Release Scheme.

 	The grounds upon which this relief was granted are those set out at paragraph E in the Applicant’s statement and are as follows.  
1.	On or about April 10, 1998 the participants in the multi-party negotiations reached agreement (The Belfast Agreement) whereby both the Irish and British Governments committed themselves to inter alia putting in place mechanisms to provide for the release of prisoners convicted of scheduled offences in Northern Ireland or, in the case of those sentenced outside Northern Ireland, similar offences (referred to hereafter as ‘qualifying prisoners’) and stated that such arrangements would protect the rights of individual prisoners under national and International law.
2.	By virtue of the Criminal Justice (Release of Prisoners) Act, 1998 (The 1998 Act’) its British equivalent being the Northern Ireland (Sentences) Act, 1998, the Irish Government legally implemented the commitments contained in the Belfast Agreement.
3.	By virtue of Section 3(4) of the 1998 Act the relevant provisions referred to in the 1998 Act mean those provisions of the Belfast Agreement under the heading ‘Prisoners’ in that Agreement and which are scheduled to the 1998 Act
4.	The relevant provisions referred to above and contained in both the Belfast Agreement and the 1998 Act are as follows:-
(i)	Both Governments will put in place mechanisms to provide for an accelerated programme for the release of prisoners, including transferred prisoners convicted of scheduled offences in Northern Ireland or, in the case of those sentenced outside Northern Ireland or, similar offences (referred to hereafter as ‘qualifying prisoners’).  Any such arrangements will protect the rights of individual prisoners under national and international law.
(ii)	Prisoners affiliated to organisations which have not established or are not maintaining a complete and unequivocal cease-fire will not benefit from the arrangements.  The situation in this regard will be kept under review.
(iii)	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, any qualifying prisoners who remain in custody two years after commencement of the scheme would be release at that point.
(iv)	The Government will seek to enact the appropriate legislation to give effect to these arrangements by the end of June 1998.
(v)	The Governments continue to recognise the importance of measures to facilitate the reintergration of prisoners into the community by providing support both prior to and after release, including assistance thereafter towards availing of employment opportunities, re-training and/or re-skilling and further education.
5.	The gravamen of Criminal Justice (Release of Prisoners) Act, 1998 (and Northern Ireland (Sentences) Act, 1998) is to enable the phased release of persons imprisoned anywhere in the two jurisdictions arising from convictions for crimes which were politically motivated.  The clear intention of the said legislation and the Belfast Agreement is that all qualifying prisoners will be released within two years of the coming into effect of the Scheme, i.e.; - on or about the end of July 2000.
6.	The Applicant is currently a member of the Irish National Liberation Army and the Officer Commanding on the Irish National Liberation Army Wing in Portlaoise Prison.  The Irish National Liberation Army is on a recognised cease-fire in support of the Belfast Agreement and a number of its members have been released pursuant to the said Agreement, including the Applicant’s three co-accused.
7.	Pursuant to the Criminal Justice (Release of Prisoners) Act, 1998 the Release of Prisoners Commission was established as an independent body to advise the Minister for Justice, Equality and Law Reform whenever the Minister considered it appropriate and requested such advise in relation to the exercise of any power relating to the release of prisoners specified by the Minister to be qualifying prisoners under the terms of the Belfast Agreement.
8.	The 1998 Act therefore envisages a two stage procedure whereby the Minster for Justice, Equality and Law Reform specifies a person to be a qualifying prisoner and then if he so wishes, requests advice from the Release of Prisoners Commission.
9.	The 1998 Act therefore, does not provide any actual new power of release which already exist pursuant to inter alia the Offences Against the State Act, 1939 and the Criminal Justice Acts, 1951-1960 (as amended).  The Release of Prisoners Commission, while independent, performs an advisory role only.
10.	The Minister for Justice, Equality and Law Reform is obliged, however, by virtue of the Criminal Justice (Release of Prisoners Act) 1998 to have regard to the relevant provisions of the Belfast Agreement and to the Schedule annexed to the 1998  Act in the making of decisions on the release of each prisoner.  This requirement also applies to the Release of Prisoners Commission in the giving of advice to the said Minister when such advice is requested.
11.	These conditions include the requirement that prisoners affiliated to organisations which had not established or are not maintaining a complete and unequivocal cease-fire will not benefit from the arrangements, that both Governments are obliged to complete a review process within the fixed timeframe and set prospective release dates for all qualifying prisoners.  The review process is to provide for the advance of the release dates of qualifying prisoners while allowing account to be taken of the seriousness of the offences of which the person was convicted and the need to protect the community; the intention was that qualifying prisoners who remain in custody two years after commencement of the Scheme would be released at that point.
12.	The Applicant is a qualifying prisoner under the Belfast Agreement in that he comes within the definition of those prisoners, including transferred prisoners, convicted of scheduled offences in Northern Ireland or in the case of those sentenced outside Norther Ireland, similar offences.
13.	Despite the commitment given in the Belfast Agreement and repeated in the 1998 Act, the Applicant has not been released, notwithstanding the expiry of two years from the commencement of the Scheme in or around the end of July 2000.
14.	Further and/or without prejudice to the aforementioned, despite the fact that the Applicant applied for release on or about the 4th May, 2000, the Minister for Justice, Equality and Law Reform has failed, refused and/or neglected to make a decision on his application.
15.	The Applicant therefore has a legitimate expectation that his application would be processed within a reasonable period and pursuant to the requirements set out in the Schedule to the Criminal Justice (Release of Prisoners) Act, 1998 and the Belfast Agreement.
16.	The Minister in the exercise of his statutory powers and in particular having regard to the requirements set out in the Schedule to the 1998 Act and the Belfast Agreement and the requirements of natural and/or constitutional justice and/or fair procedures is under an obligation to give the Applicant reasons for his decision.
17.	Further, in processing the Applicant’s application the Minister for Justice, Equality and Law Reform is under a duty to comply with the terms of the Belfast Agreement and the Schedule to the 1998 Act given the fact that the Government committed itself to providing for an accelerated programme for the release of prisoners and that any qualifying prisoner who remained in custody two years after the commencement of the Scheme would be released at that point which expired in or around the end of July 2000.
18.	The Applicant therefore has an entitlement and/or a legitimate expectation to be released from in or around the end of July 2000.
19.	To date the Minister for Justice, Equality and Law Reform has failed to make a decision on the Applicant’s request for release, despite the fact that the Applicant’s co-accused has been released some time ago.

	The Applicant’s application is grounded upon an affidavit sworn by him and filed the 25th September 2000.  In his affidavit the Applicant states that he has been involved in the Republican Movement since the early 1970’s initially as a Provisional Irish Republican Army Volunteer and then as an Irish National Liberation Army Volunteer.  He says that he has spent 20 years in Portlaoise Prison from 1979 to 1986 and from 1987 to 2000.  He says that in or around 1987 he was arrested in relation to the kidnapping of John O’Grady.  He was tried in the Special Criminal Court and sentenced to 40 years.  At that time three other men were also sentenced.  His co-accused were Edward Hogan, Fergal Toal and Anthony McNeill.  The Applicant states that he is currently a member of the Irish National Liberation Army and the Officer Commanding on the Irish National Liberation Army Wing in Portlaoise Prison.  The organisation to which he is affiliated namely the Irish National Liberation Army is on a recognised ceasefire in support of the historic agreement reached in the Multi-Party Talks referred to as the Belfast Agreement of the 10th April, 1998.  The Applicant states that consistent with his organisation’s policy he is in total support of the Belfast Agreement.  The Applicant refers to paragraph 25 of Agreement which states:- 
	“Both Governments will put in place mechanisms to provide for an accelerated programme for the release of prisoners, including transferred prisoners, convicted of scheduled offences in Northern Ireland or, in a case of those sentenced outside Northern Ireland, similar offences (referred to hereinafter as qualifying prisoners).  Any such arrangements would protect the rights of individual prisoners under national and international law”.   

	The Applicant refers to the second paragraph which states:- 
	“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”.  

	The Applicant points out that the provisions of the Belfast Agreement dealing with prisoners are scheduled to the Criminal Justice (Release of Prisoners) Act, 1998 (the 1998 Act).  The Applicant claims to come within the type or category of prisoner envisaged under the terms of the Belfast Agreement and that therefore he should benefit from the programme of accelerated release in that he is serving a sentence for offences similar to scheduled offences in Northern Ireland because of the political developments arising out of the Agreement.  He points out that his three co-accused have already been released under the terms of the Belfast Agreement.  
	The Applicant states that he comes within the terms of the 1998 Act and that he is a qualifying prisoner within the terms of that Act.  He points out that the commitments of the respective governments have led to the enactment in Northern Ireland of the Northern Ireland (Sentences) Act of 1998 and in this State to the enactment of the 1998 Act.
	The Applicant states that the Minister for Justice, Equality and Law Reform (the Minister) is required to adhere to the terms of the Belfast Agreement when processing his application.  He says that the Minister is required to act within the parameters of natural and constitutional justice and fair procedures.  He claims that the Minister has failed in both respects in the processing of his application for release.
	The Applicant points out that on the 4th May, 2000 he and two other prisoners Edward Hogan and Sean “Bap” Hughes wrote to the Minister.  He says that in his letter he stated that he had been instructed by the leadership of the Republican Socialist Movement to formally request, through the Governor, his release under the terms of the Belfast Agreement.  He points out that no response was forthcoming to his request despite the fact that the other two Applicants were released approximately 18 days later.  He says that his other two co-accused have also been released under the terms of the Belfast Agreement.  He states that his solicitor wrote on the 29th of August, 2000 to the Minister and repeated his request for a decision on his application for release under the terms of the 1998 Act and/or the Belfast Agreement.  The Minister by letter dated the 30th August, 2000 acknowledged receipt of the letter of the 29th August, 2000 and stated that it was receiving attention.  
	By further letter of the 6th September, 2000 the Applicant’s solicitors wrote to the Minister and referred to their disappointment that the letter dated the 30th August 2000 amounted to no more than a holding letter and that over four months had elapsed since the Applicant’s initial request for release under the terms of the Belfast Agreement without a decision having been made.  The letter emphasised that the matter was both serious and urgent in the circumstances and given the manifest delay of over four months in the processing of his application from the date of his initial letter,  his solicitors officially requested that a decision be made within seven days of the date of the letter and that adequate and detailed reasons be given in the exercise of the Minister’s decision making powers.  
	The Applicant points out that despite the issuing of this letter the Minister has failed, refused and neglected to make a decision in relation to his application or to furnish him with reasons as to why this is the case.  He points out that the Belfast Agreement and the 1998 Act are both predicated on the implementation of an accelerated programme for the release of prisoners and on the requirement of expedition.  He states that despite the expiry of four months and the fact that his co-accused had been released some time ago, no decision has been made on his application.  The Applicant points out that the 1998 Act contains no equivalent mechanisms to those appearing in the Northern Ireland Act, as to how a prisoner should qualify as a qualifying prisoner and allows a broad Ministerial discretion to decide who is and who is not a qualifying prisoner.  He says that such a broad discretion was never intended within the terms of the Agreement reached in the Multi-Party Negotiations and that the Minister in the exercise of his discretion is obliged to have regard to the terms of the Belfast Agreement and in particular to the schedule to the 1998 Act when processing his application.  
	The Applicant claims that he fulfils the requisite requirements as set out in the Belfast Agreement and that the Minister should confine his decision making powers within the terms of the Agreement.
	The Applicant further contends that he is no longer in lawful custody because the period of two years specified in the Agreement reached in the Multi-Party Negotiations at paragraph 3 under the heading ‘Prisoners’ and in paragraph 3 of the Schedule of the 1998 Act has now passed, that date being in or around the end of July, 2000 and since he claims to come within the definition of a qualifying prisoner set out in the Agreement he now claims to be entitled to be released under the provisions of the said Agreement.
	The Applicant further contends that the Government is also in breach of the Belfast Agreement by not continuing to recognise the importance of measures to facilitate the reintegration 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.  As against this he contends that it appears that the British Government is abiding by the date of the 28th July, 2000 for the release of prisoners under the Belfast Agreement and holding only those prisoners who have been convicted of offences after the ceasefire to a maximum of two years.  He points out that he is the last remaining prisoner of four who were jointly charged and sentenced in the Special Criminal Court 13 years ago.  Of the other three who have been released under the terms of the Agreement, two were released from Portlaoise Prison and one from a Northern Ireland Prison after he was repatriated.
	The Applicant contends that as a member of the Irish National Liberation Army and the Officer commanding the Irish National Liberation Army Wing in Portlaoise Prison whose co-accused have been released under the terms of the Belfast Agreement the requirements of natural and constitutional justice and fair procedures and the Belfast Agreement itself dictate that he should be released and/or that a decision be made on his application for release within a reasonable period from the date of his application.  
	In addition to the above mentioned documents formally exhibited in the grounding affidavit of the Applicant, correspondence passing between the parties was opened to this court by agreement between the parties.  This shows that with regard to the letter from John J Rice & Company, Solicitors to the Minister, dated the 6th September, 2000 a letter of acknowledgement was sent on the 7th September, 2000.  On the 27th November, 2000 the Irish Prison Service wrote to the Governor of Portlaoise Prison informing him that on the 17th November, 2000 the Minister specified the Applicant to be a qualifying prisoner for the purposes of the Belfast or Good Friday Agreement.  It was indicated that his case was then referred to the Release of Prisoners Commission for their advice in accordance with the Act.  This information was to be passed onto the Applicant thereafter.  On the 28th November, John J Rice & Company, Solicitors wrote again to the Minister indicating acknowledgement of receipt from the Prison Service of the fact that the Applicant had been specified to be a qualifying prisoner in accordance with the 1998 Act.  The Solicitors asked the Minister when did he expected to receive the advices of the Release of Prisoners Commission.  This letter was acknowledged on the 6th December 2000 and was stated to be receiving attention.  On the 7th December, 2000 by letter from the Chief State Solicitors to John J Rice & Company it was submitted that the matter was then moot and that the application herein should be struck out.  
	On the 24th January, 2001 John J Rice & Company again wrote to the Minister referring to their letter of the 6th December, 2000 requesting to know whether the Minister had received any advices from the Release of Prisoners Commission in respect of their client’s case.  This letter was replied to by a letter from the Minister’s private secretary acknowledging receipt of the letter and stating that it was receiving attention.  On the 7th February, 2001 John J Rice & Company again wrote to the Minister referring to his letter of 30th January, 2001 and referring to the letter of 28th November, 2000 in respect of the matter.  The Minister was asked whether he intended providing the solicitors with a substantive reply at any time in the then near future.  This letter was replied to on the 13th February, once again in the form of an acknowledgement on behalf of the Minister stating that the letter was receiving attention.  No substantive reply was furnished to this letter. 
	 On the 19th February, 2001 Messrs. John J Rice & Company, Solicitors, again wrote to the Minister acknowledging receipt of his holding letter of 13th February, 2001.  This letter again referred to the letter of the 28th November, 2000 enquiring as to when the Minister expected to receive the advices of the Release of Prisoners Commission.  The letter went on to state that the Minister had repeatedly failed to provide the solicitors with a substantive reply to that letter despite a number of reminders.  The letter went on to point out that three months had then passed since the case was referred to the Commissioners and that the solicitors would have thought it likely that some advices would have been received by the Minister by then.  The letter went on to state that it occurred to the solicitors that at this stage of the Prison Release Scheme the workload of the Commissioners would not have been that onerous such that some consideration could not have been given to their client’s case.  The letter referred to the personal application of 4th May, 2000 requesting release under the terms of the Good Friday Agreement, that almost one year on, the client felt that the Minister was no nearer to making a decision on his application and the fact that the three co-accused had long since been released.  The letter requested a reply in more substantive terms other than a mere holding letter.  This letter was replied to on the 21st February, 2001 in a letter which merely acknowledged receipt of the letter of the 19th February, 2001 and which stated that the letter would be brought to the Minister’s attention.  At the stage when the matter came before this Court thereafter, no substantive reply had been furnished by the Minister.  
	On the 7th December, 2000 a Statement of Opposition was filed on behalf of the Respondents which stated as follows
	“The first named Respondent has by letter dated the 7th December, 2000 informed the Applicant that the first named Respondent has, pursuant to Section 3 of the Criminal Justice (Release of Prisoners) Act, 1988 (sic) (the “1998 Act”) specified the Applicant to be a qualifying prisoner, within the meaning of the 1998 Act and the Good Friday Agreement.  The Applicant’s case was on the 17th November, 2000 referred to the Release of Prisoners Commission for their advices with respect to the exercise by the first named Respondent of any power of release.  As the Applicant’s application has been processed, the issue giving rise to leave to reply for Judicial Review, is in all the circumstances, moot.”
	
	This matter was initially argued before this Court on the 6th day of April, 2001.  On this occasion insofar as no evidence was put before the Court on behalf of the Respondents, I further adjourned the matter and I afforded the Respondents an opportunity of filing an affidavit dealing with the failure to respond in substantive form to the letters sent on behalf of the Applicant to the Minister. In this regard an affidavit of John Kenny has been sworn on the 25th April, 2001.  In his affidavit Mr. Kenny states that the Minister considered the Applicant’s application alongside the others on the 16th May, 2000.  It was pointed out that the Respondent Minister did not specify the Applicant to be a qualifying prisoner under Section 3 (2) of the 1998 Act at that time.  It is stated that on receipt of further advice, the Minister reconsidered the Applicant’s case on the 17th November, 2000 and decided to specify the Applicant to be a qualifying prisoner.  The affidavit goes on to state what occurred thereafter with regard to the processing of the Applicant’s case and shows as follows
1.	On the 17th November, 2000 the Respondent Minister referred the Applicant’s case to the Release of Prisoners Commission for its advice in accordance with Section 3 (2) of the 1998 Act. 
2.	On the 28th November, 2000 the Applicant was informed in writing of this decision and on the 29th November the Commission requested the Minister to provide an up to date security report and psychiatric and psychological assessments on the Applicant.  
3.	On the 1st December, 2000 Mr. John Kenny, Principal Officer in the Prisons Division (Operations) within the Irish Prison Service in the Department of Justice, Equality and Law Reform requested the provision of a security report upon the Applicant.  
4.	On the 5th of December, 2000 he requested assessment from both the Prisons’ Psychology Service and from Dr. Smith, Medical Director of the Central Mental Hospital.  
5.	By letter of 5th December to the Senior Psychologist of the Clinical Psychology Service he was requested if he could indicated whether he would be in a position to undertake the preparation of a psychological assessment for the Commission’s benefit and if so when the assessment might be available.  A similar letter was sent to the Medical Director of the Central Mental Hospital.
6.	On the 23rd January, 2001 Dr. Smith, the Medical Director of the Central Mental Hospital responded indicating that Dr. Harry Kennedy was to provide the psychiatric assessment.  
7.	On the 25th January, 2001 the psychological assessment which had been commissioned was received by the Respondent.  Subsequently on the 6th February, 2001 the report was forwarded to the Commission.  
8.	On the 26th March, 2001 Mr. Kenny reminded Dr. Harry Kennedy of the request for the psychiatric assessment.  The letter referred to a phone call and requested Dr. Kennedy to let Mr. Kenny know when he (Dr. Kennedy) planned to view the file on the Applicant and that he would make the necessary arrangements.  
9.	On the 20th April, 2001 the requested security report was received by the Minister and on the 24th April, 2001 the psychiatric assessment was received by the Minister.  

	The affidavit states that the Minister is considering legal advice with respect to the transmission of the psychological report and the psychiatric assessment to the Commission.  

SUBMISSIONS OF THE PARTIES.
	On behalf of the Applicant it was submitted by Mr. Patrick Gageby of Senior Counsel that the term ‘qualifying prisoner’ had to be construed in light of the 1998 Act and  that by reason of the passage of the agreement there is a graft on the general power of release to mandate and require the release of all qualifying prisoners by the end of July 2000.  It was submitted that this obligation had been fulfilled other than by the Respondent in this State, that the application of the Agreement was not a discretionary matter for the Minister, that the Applicant has locus standi and that the State is bound by the Agreement insofar as it forms part of the domestic law of the State.  It is submitted that all the Applicant is seeking in these proceedings is that the State abide by the law, that insofar as the Applicant is being held to be a qualifying prisoner and is still in custody that the effect of the Belfast Agreement is that it represents a particular graft on the law in circumstances where release generally is a matter of discretion and privilege.  It is submitted that the terms of the Agreement are not to be construed like a statute.  It is pointed out that the general thrust of the application of the Agreement has been to release all prisoners by the 28th July, 2000.  
	By reference to the decision of McKechnie J in the case of Henry Doherty -v- Governor Portlaoise Prison (Unreported High Court 24th day of November, 2000) it is submitted that there is a strong presumption that any or all qualifying prisoners, should circumstances allow, be released by the end of July, 2000.  It is submitted that this raises an issue of legitimate expectation.  It is submitted that the wording of the Agreement providing for release of prisoners ‘should  circumstances allow it’, must be contrasted with the decision as to ‘should his/her circumstances allow it in reference to a particular prisoner’.  Counsel submits that what is in issue in these proceedings is the real intent behind the Belfast or Good Friday Agreement.  It is submitted that if it was intended that a discretionary power be given to the Minister that the Act would have been much clearer in its terms.  It is submitted that the Act does not say that the release is in the discretion of the Minister and that this renders the provisions in question to be mandatory in nature.
	It is submitted that the statute should be construed in light of the Treaty or the Agreement itself in the instant case. Counsel submits that the fact that prisoners have been released outside the jurisdiction of this Court speaks for itself.  It is submitted that no evidence has been adduced by the Respondent to show any circumstances that does not allow for the release of the Applicant.  Further reliance is placed upon the fact that all the circumstances outlined in the Applicant’s affidavit remained uncontradicted.  It is submitted that in the instant case if one is looking at the circumstances of the case and the run of the case and including in that regard the correspondence it does not show that the Minister adverted to any circumstances warranting the refusal to release the Applicant and that no reasons have been advanced.  It is submitted that no evidence has been advanced which shows any basis of refusal exists to the knowledge of the Minister.
	On behalf of the Minister, Mr. Sean Ryan SC submitted that all the points made by Counsel on behalf of the Applicant ignore the provisions of the 1998 Act.  In this regard reference is made to Sections 2(2), 3(2) and 3(3) of the Act which provide as follows:-
	“2(2)  The Commission shall be independent in the performance of its function under this Act.
	3(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 subsection (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(3)  The Commission may, if it considers it necessary to do so for the purpose of performing its function under this Act, request the Minister to furnish to it information specified in the request, being information that is in the possession of the Minister or may reasonably be procured by him or her, and the Minister shall comply with such a request.”

	Counsel pointed to the fact that the Commission sought information on three areas, an update security report, a psychiatric report and a psychological report.  These were sought on the 5th December, 2000.  It is pointed out that the security report was sought on the 1st December and had been followed up with constant reminders.  It is submitted that simply because there may have been delay in the matter in the furnishing of the reports to the Commission, the Minister is not entitled to say that there has been too much delay in this case and therefore I will make my decision.  It is submitted that the Minister is bound to obtain the views of the Commission before making any decision in the matter.  It is submitted further that the 1998 Act does not itself provide for any new power of release.  In this regard it is submitted that the Belfast or Good Friday Agreement does not represent any new power of release.
	By reference to the Henry Doherty case, it is submitted that a person could be a qualifying prisoner, secondly, that that person may not be disqualified under paragraph 2 and yet have an adverse decision made to a claim for release.  With regard to this case, particular  reference is made to the judgment of the High Court at pages 16 and following.
	It is submitted the schedule to the Act should not be seen as an Act of the Oireachtas.  It is submitted that it is something which is aspirational in character.  With regard to the Commission itself, reference is made to the provision of Section 6(3) of the Act which provides for the dissolution of the Commission.  However, this is to be seen in circumstances where it will otherwise continue in existence after the expiration of the two year period beginning on the date of its establishment.   
	It is submitted that the Act itself does not give power to release.  It is submitted that the release arises under a different power in a different Act, namely the Criminal Justice Act of 1960.  It is further submitted that if the Applicant is correct that under the Agreement he is entitled to be released, that this could only mean that one must ignore the terms of the Act itself.  It is submitted that the Act and only the Act can be looked at by the Minister in the determination of the Applicant’s claim.  While it is submitted on behalf of the Applicant that if the Act does not give power of release that it does not do what the State signed up do in the context of the Belfast Agreement itself, it is submitted on behalf of the Minister that the Act refers to the Agreement for the purpose of identifying the genesis of what has to be taken into account; otherwise it is submitted that the Agreement has to construed as overriding the Act itself and its provisions and that this is not legitimate.  It is submitted that had the Act intended to created an automatic entitlement to release that that would have been stated in the Act itself.  It is submitted that the Applicant’s argument is one for the exercise in a particular way of the powers under the Act, in light of the advice furnished to the Minister. It is submitted that a wrong construction of the Act cannot give rise to a basis of a legitimate expectation.  It is submitted that the only part of the Agreement that can be relied upon is that which itself provided that it was to be determined by an Act itself.  It is submitted that paragraph 3 of the relevant chapter of the Agreement dealing with ‘Prisoners’ is a political obligation and not a legal obligation.  It is submitted that the Applicant has not been able to establish any grounds to fetter the discretion of the Minister.  It is submitted in this regard that there are no grounds therefore, for the application of the doctrine of legitimate expectation.  There have been no express representations made to the Applicant and no settled course of conduct giving rise to any application of the doctrine.  It is submitted further that even if these were to be established that they could not fetter a statutory discretion which the Minister by law relies upon.  It is submitted that the language of the schedule is couched in political terms which are aspirational and anticipatory in nature.  It is submitted that these terms are conditional on events happening and judgments being made.  It is submitted, therefore, that these cannot be construed as given a separate right to release apart from the terms of the Act itself.
	In reply, Mr. Gageby submitted that there must be a presumption that a domestic provision conforms with international law and, if no right to release is given by the Act, that it fails to conform with international law.  It was further submitted that there must be a power of equal protection of human rights under the terms of the Belfast Agreement.  He submitted that it was established as a fact that persons outside the State had been released under the terms of the Agreement.  It was submitted that the situation here is that it has been established that the Applicant is a qualifying prisoner and that his release should have been secured in the context of a reasonable construction of the Agreement.  A question was raised as to what was the time limit of any review under the terms of the Agreement and the Act itself.  It was submitted that there have been no explanations furnished by the Respondent for
1.	 not setting a release date or,
2.	not answering the requests of the 4th May, 2000.
The Applicant had been deemed to be a qualifying prisoner after the 17th November.  It was submitted that there was no remedy available to the Applicant for delay, but the Minister had been guilty of delay in this particular case.  It was submitted that there was clear evidence in the instant case of the Minister failing in his duty, arising from persistent delay and a want of an explanation on his part.  In this regard it was submitted that the Applicant was entitled, at least to the lesser declaratory reliefs sought in the order of Mr. Justice Butler giving leave made the 25th September, 2000.  It was submitted that in terms of the instant case, bearing in mind the release of the co-accused, what the Applicant was entitled to at least was a courtesy of a reply to his letters and that the Minister has set his face against the requirement to move promptly.
	It is further submitted by Mr. Gageby that requesting the advice of the Commission cannot be equated with the duty placed on the Minister to make a decision on the Applicant’s request for release.  The Commission does not make the decision.  The Minister makes the decision and he is only obliged to have regard to the Commission’s advice.  However, once requested, the Commission is obliged to comply with such a request.  
	It is further submitted that insofar as the Commission’s function is advisory only that the decision making  powers rest solely with the Minister.  It is complained that the Minister has to date failed, refused and/or neglected to make a decision on the Applicant’s application. It is further submitted that the referral of the Applicant’s case to the Release of Prisoners Commission fails to deal with the Applicant’s case.  It is submitted that this manifestly is not a decision on the Applicant’s application.  For this reason it is submitted that the Applicant’s application has not been processed contrary to what is contained in the statement of opposition filed on behalf of the Respondents.  
CONCLUSIONS.
	In the first place it is to be noted that the Belfast Agreement which is also referred to as the Multi Party Agreement is in fact a multi faceted one.  Included under the Agreement are Constitutional Issues, Democratic Institutions in Northern Ireland, the North/South Ministerial Council, the British - Irish Council, British - Irish Intergovernmental Conference, provisions on Human Rights and Economic, Social and Cultural issues.  The Agreement further provides for the decommissioning of all paramilitary arms in circumstances where the agreement aimed to achieve the decommissioning of all such arms within 2 years following endorsement in referendums North and South of the Agreement and in the context of the implementation of the overall settlement.  The Agreement also provided for security matters leading to the normalisation of security arrangements and practices.  The objective in this regard was as early a return as possible to normal security arrangements in Northern Ireland, consistent with the level of threat. A further chapter of the Agreement dealt with Policing and Justice.  The final substantive matter dealt with under the Agreement was the provision relating to prisoners which is annexed to this judgment.  In addition to the substantive matters dealt with, there was a further chapter of the Agreement dealing with validation, implementation and review.
	At the heart of the Agreement was the reaffirmation by the parties of their total and absolute commitment to exclusively democratic and peaceful means of resolving differences on political issues, and their opposition to any use or threat of force by others for any political purpose, whether in regard to this Agreement or otherwise.  It is in this light that the chapter dealing with prisoners has to be seen.
	In approaching the prisoners section of the Agreement, I believe that the matter is correctly and succinctly put by Mr. Justice McKechnie in his judgment in the Doherty case where at p. 16 in approaching this section of the Agreement he stated that it seemed to him
(a)	 that both governments agreed to put in place mechanisms to deal with, in certain circumstances, the early release of certain prisoners, being those convicted of scheduled offences in Northern Ireland or those convicted of and sentenced for similar offences outside Northern Ireland: these persons are referred to as “qualifying prisoners” in this section of the Agreement.  
(b)	If otherwise  “qualifying prisoners”, such persons could, nonetheless, be disqualified if they were affiliated to organisations which were not established or which were not maintaining a complete and unequivocal ceasefire - (paragraph 2),
(c)	In carrying out the review process envisaged at paragraph 3, the seriousness of the offence and the need to protect the community were relevant matters.  One could be a qualifying prisoner, not disqualified under paragraph 2 and yet be refused release on these grounds.
(d)	In addition, subject to circumstances, an intention was expressed that qualifying prisoners, not earlier released, would in any event be released two years after the commencement of the scheme (paragraph 3) and
(e)	both governments would seek to enact appropriate legislation, to give effect to these arrangements by the end of June 1998.
	
	At the heart of this case is paragraph 3 of the chapter of the Agreement relating to prisoners.  What the Applicant relies upon in particular are the words as follows:-
	“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.”

	In the instant case while it took the Minister approximately six months to assess whether the Applicant qualified as a “qualifying prisoner”,  this determination was made at a point in time in excess of two years after the commencement of the scheme.  The Applicant believes that he was entitled to be released at this point by reason of the effluxion of the two year period.  The review process provided for prospective release dates to be set for all the qualifying prisoners; this process required account to be taken of the seriousness of the offences for which the person was convicted and the need to protect the community.  It is to be noted that the intention was that “should the circumstances allow it” any qualifying prisoner who remained in custody two years after the commencement of the scheme would be released at that point.  
	Insofar as the Respondents have been concerned to implement this section of the Agreement they are required to take into account all of the aspects of this part of the Agreement and in particular the seriousness of the offences for which the Applicant has been convicted and the need to protect the community.  An assessment has to be made whether the circumstances permit the release of the Applicant at any particular point in time.  I am of the opinion that the Agreement is couched in language which is not to be construed in the same manner in which one would construe an Act of the Oireachtas but whose terms are essentially political in nature.  What is clear is that the Respondents are required to consider the Applicant’s position under the terms of the review process.  There is no automatic entitlement to a qualifying prisoner to be released from custody at the conclusion of the two year period referred to.  It is clear that the provisions of this part of the Agreement only envisaged such release where ‘the circumstances allowed it.’  
	In the instant case the Minister has invoked the provisions of the 1998 Act.  The Minister has requested the body known as An Coimisiún um Scaoileadh Saor Príosúnach or in the English language the Release of Prisoners Commission (“the Commission”) to advise him with respect to the exercise by him of the power of release in relation to the Applicant. 
	Under the terms of  Section 2(2) of the Act, the Commission is stated to be independent in the performance of its functions under this Act.  The Commission is required to comply with a request made of it by the Minister.  It is clear that under the provisions of Section 4 of the 1998 Act the Minister in the instant case is required to have regard to the relevant provisions being that portion of the Belfast Agreement appearing under the heading “Prisoners” in the Agreement and furthermore the advice concerned given by the Commission.  I accordingly accept the submissions made on behalf of the Minister to the 
effect that once the Minister has invoked the provisions of Section 3 of the 1998 Act and has requested the advice of the Commission that he must have regard to the advice concerned given by the Commission.  The Minister is not entitled to bypass the provisions of the Act.  Furthermore the Minister is not entitled to influence the Commission in the performance of its functions insofar as the Act provides that it shall be independent in the performance of these functions under the Act.  Once advice has been received by the Minister from the Commission the Minister will be required to have regard to this advice in considering whether to exercise any power of release in relation to the Applicant.
	I am satisfied on the evidence before me that the Minister has acted within jurisdiction in invoking the powers contained in Section 3 of the Act and in seeking the advice of the Commission insofar as he considered this appropriate in the case of the Applicant.  While some period of time has elapsed between the date of the request made by the Minister to the Commission and this time, it appears that the Commission itself sought further advice in the form of psychiatric, psychological and security reports.  No suggestion has been made in the course of these proceedings that in seeking these reports the Commission acted in any way improperly and it is clear that such matters may be of assistance in determining whether a particular prisoner should be released under the terms of the Agreement having, in particular, regard to the necessity to protect the community in the context of any proposed release.  
	While the Applicant has put forward various matters in his affidavit filed in these proceedings such as to show that he should be considered to be a qualifying prisoner in the first instance and that he may merit being given early release under the terms of the Agreement, I am of the view that the Minister is not required simply to rely on assertions from Applicant prisoners but is entitled to assess these assertions in considering whether in the first instance a particular prisoner falls to be considered as a qualifying prisoner.  It is to be noted that the Applicant in his affidavit deposes to currently being a commanding officer of a paramilitary organization.  
	In conclusion, the Applicant has failed to demonstrate to this Court that the Minister has failed to have regard to the relevant provisions of the Belfast Agreement in his approach to the Applicant’s request for an early release.  I am also satisfied that insofar as the Minister is required to have regard to the advice tendered by the Commission in circumstances where it was requested of it that he must await the receipt of this advice before determining the Applicant’s request.
	An unfortunate aspect of this case is the failure on the part of the Minister to acquaint the Applicant’s solicitors of the progress of matters in circumstances where several letters were written to the Minister.  I believe that simple courtesy warranted the Minister giving the Applicant’s solicitors more than a mere acknowledgement of the correspondence received from them and that it was appropriate that the Minister advise the Applicant’s solicitors of the ongoing progress of the Applicant’s case.  The latest affidavit of Mr. John Kenny also suggests undue delay in the furnishing to the Commission of a psychiatric report which took almost 5 months from the date of the Commission’s request.  However, I do not make any concluded judgment on this matter as Mr. Kenny was not cross-examined in relation to this.
SCHEDULE
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 scheduled 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 remain 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 reintegration 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.