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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Neill & Anor v. Governor of Castlerea Prison & Ors [2003] IEHC 83 (27 March 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/83.html Cite as: [2003] IEHC 83 |
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O'Neill & Anor v. Governor of Castlerea Prison & Ors [2003] IEHC 83 (27 March 2003)
Record Number 2001 No 543JR
Between:
Applicants
Respondents
Judgment of Mr Justice Michael Peart delivered the 27th day of March 2003
By order dated the 30th day of July 2001, the applicants were given leave by Mr Justice Butler to apply to this court by way of Judicial Review for the following reliefs:
1. Declarations as follows:
i. That the applicants and each of them are qualifying prisoners for the purposes of the British-Irish Agreement done in Belfast on the 10th day of April 1998 and/or the Criminal Justice Release of Prisoners) Act 1998 and/or
ii. That the applicants and each of them are entitled to be released from custody forthwith pursuant to the provisions of the British-Irish Agreement done in Belfast on the 10th day of April 1998 and/or the Criminal Justice (Release of Prisoners) Act 1998 and/or
iii. That the applicants and each of them are entitled to the following procedures in the context of their applications to be recognised as qualifying prisoners and to be released from custody
a) Sight of all material or such material as may be directed upon which the Second named Respondent proposes to act in considering their applications for recognition as qualifying prisoners and for their release
b) The opportunity to respond to such material in advance of a decision and/or in particular an oral hearing of the said application
c) Detailed or any reasons for the Second named Respondent's proposed decisions and/or
d) The opportunity to respond to the said proposed decisions prior to a final determination being made
iv. That the applicants and each of them are entitled to have their said applications processed within a reasonable time and a declaration that the second named Respondent has failed to process their said applications within a reasonable time
v. That the applicants and each of them are entitled to have their said applications determined by a person who and in a manner which is not tainted by any prejudgment of their applications and a declaration that the second named respondent has repeatedly pre-judged their said applications and the issues involved therein and has improperly communicated such prejudgments otherwise than to the applicants and each of them to such an extent that he has demonstrated unacceptable and unlawful bias.
vi. That the applicants and each of them are entitled to equality of treatment as compared with others in comparable circumstances and that they have not been afforded such treatment contrary to Article 40.1 of the Constitution and/or Article 14 of the European Convention on Human Rights and Article 26 of the International Covenant on Civil and Political Rights.
2. An Order of Mandamus requiring
i. The second named respondent to determine that the applicants and each of them are qualifying prisoners for the purpose of the Good Friday Agreement and the Criminal Justice (Release of Prisoners) Act 1998
ii. The second named respondent to afford the applicants the benefit of the procedures set out in the Statement of Claim in the consideration of their applications for recognition as qualifying prisoners and for their release
iii. The second named respondent to process the said applications of the applicants and each of them within a reasonable time
iv. The second and/or third named respondent to take such steps as are necessary or as are directed to ensure that the said applications of the applicants and each of them will be decided by a person who and in a manner which is not tainted by any prejudgment of their applications including if necessary steps pursuant to sections 6 and 7 of the Ministers and Secretaries (Amendment) Act 1939 and/or section 2 of the Ministers and Secretaries (Amendment) (No 2) Act 1977
3. The release of the applicants pursuant to the said Agreement or Act or pursuant to the Temporary Release of Offenders (Castlerea) Rules 1998
5. Costs pursuant to the Attorney General's Scheme including the costs of Senior Counsel.
The application is grounded on the following affidavits and their respective exhibits:
affidavit of Michael Farrell, solicitor, sworn the 30th July 2001
affidavit sworn by the first named applicant, Michael O'Neill on the 28th September 2001
affidavit of the second named applicant, John Quinn, sworn on the 28th September 2001
affidavit of Barry McCrory sworn on the 12th October 2001
further affidavit of Michael Farrell sworn on the 6th March 2002
further affidavit of Michael Farrell sworn on the 9th October 2002
A Statement of Opposition was filed on behalf of the Respondents, but no affidavit was filed on their behalf.
Background Facts:
As deposed to in the affidavit of Mr Farrell sworn on the 30th July 2001, the Irish Government and the Government of the United Kingdom entered into the British-Irish Agreement at Belfast on the 10th April 1998. Scheduled to that Agreement is a Multi-Party Agreement which is generally referred to as the Belfast Agreement or the Good Friday Agreement. I shall refer to same as the Good Friday Agreement. He states that the main purpose of these agreements was to bring about an end to the conflict that had existed in Northern Ireland over the previous thirty years, which at times had spilled over into the Republic of Ireland and into Great Britain, and which had resulted in a considerable number of deaths and injuries and extensive damage to property. He also states that a key provision of these agreements was that persons convicted of offences arising from the aforementioned conflict, regardless of the offence or the identity of the victim (whether civilian, police or military) would be released in prescribed circumstances. He refers to a section in the Good Friday Agreement headed "Prisoners". I set out the text of that section as it is of central importance:
"1. Both Governments will put in place mechanisms to provide for an accelerated programme for the release of prisoners, including transferred prisoners, convicted of- 7 - 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 arrangement 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 that 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 prisoners were 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 reintegration of prisoners into the community by providing support both prior to and
- 8 - after release, including assistance directed towards availing of employment opportunities, re-training and/or re-skilling, and further education."
This affidavit goes on to say that the first named applicant was convicted in February 1999 of the manslaughter of Detective Garda Jerry McCabe, malicious wounding of Detective Garda Ben O'Sullivan and possession of firearms for the purpose of robbery at Adare in the County of Limerick on 7th June 1996, and that he was sentenced to 11 years imprisonment and to two concurrent terms of 5 years imprisonment respectively, which he is serving in Castlerea Prison. The second named applicant was convicted in February 1999 of conspiracy to commit the same robbery at Adare in the County of Limerick in June 1996, and that he was sentenced to 6 years imprisonment, which he is also serving in Castlerea Prison.
Mr Farrell states that he has been informed and believes that neither applicant is affiliated to any organisations which have not established or are not maintaining a complete and unequivocal ceasefire, and that from the documents received from the second named respondent it does not appear that this proposition is in dispute. He states that Barry McCrory who is a practising solicitor in Northern Ireland, has informed him that the said offences for which the applicants are serving their respective terms of imprisonment are similar to scheduled offences in Northern Ireland, this being the category of offences referred to in the Good Friday Agreement at paragraph 1 of the "Prisoners" section
thereof quoted above. Mr McCrory's affidavit sworn by him on the 12th October 2001 confirms this.
Mr Farrell then states that the mechanism for the early release of qualifying prisoners referred to in the Good Friday Agreement was established by way of the Criminal Justice (Release of Prisoners) Act, 1998 (hereafter referred to as "the 1998 Act") which was enacted on the 13th July 1998. Before setting out the remainder of the evidence from Mr Farrell's said affidavit, I set out hereunder the relevant provisions of that Act:
"Section 2 – (1) There shall stand established, on such day as the Minister may by order appoint, a body which shall be known as An Coimisiun um Scaoileadh Saor Priosunach or, in the English language, the Release of Prisoners Commission (in this Act referred to as "the Commission") to perform the function conferred on it by this Act(2) The Commission shall be independent in the performance of its function under this Act.Section 3 - (1) The function of the Commission shall be to advise, on being requested to do so under subsection (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.
- 10 - (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) 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 request.(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 – 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."
Mr Farrell states in his said affidavit that the two year period envisaged by paragraph 3 of the Prisoner section of the Good Friday Agreement expired on the 13th July 2000, and that the two year period envisaged by the comparable scheme adopted in Northern Ireland expired on or about the 28th July 2000. He goes on to say that on the 5th May 2000 An Taoiseach Bertie Ahern and the British Prime Minister Tony Blair stated in a letter dated 5th May 2000 that all remaining prisoners qualifying for early release will be released by 28th July 2000, and he states that each of the applicants anticipated being entitled to release by that date.
He also states that the Commission referred to in Section 2 of the 1998 Act has been established and that virtually all other prisoners detained within the jurisdiction of this Court and who come within the definition of qualifying prisoners have been recognised as such by the Minister and have had their cases referred to the said Commission, and that virtually all other qualifying prisoners whether imprisoned in this jurisdiction or in the United Kingdom have now been released pursuant to the provisions of the Agreement, and that this includes a number of prisoners convicted of comparable to those for which the applicants have been convicted.
He goes on to state that at least one other prisoner, who is detained at Portlaoise Prison and who was not recognised as a qualifying prisoner, has been afforded an opportunity to be informed of and to contest the reasons for the failure to accord him such recognition as well as the opportunity to be interviewed by a member of the Minister's Department.
Mr Farrell then exhibits correspondence between him and the Minister starting with a letter dated 25th July 2000 in which he requested information that that the Minister had determined that both of the applicants were qualifying prisoners and confirmation that they would be released on or before the 28th July 2000 being the date specified as the latest date for such releases in the said letter dated 5th May 2000 signed by An Taoiseach Bertie Ahern and the British Prime Minister, Tony Blair, already referred to. He says that he received only formal acknowledgements to this letter, and no substantive reply, despite reminder letters dated 1st September 2000, 16th November 2000, 16th March 2001 and 25th July 2001. In his letter dated 16th March 2001, Mr Farrell had also made a request for access to the material which the Minister proposed to consider in the course of making decisions in relation to the status of the applicants, detailed reasons for any proposed decision, an opportunity to respond to such reasons, and an oral hearing of the application for early release. No reply was received to this letter.
In addition to corresponding with the Minister in this way, Mr Farrell made application to the Minister's office under the Freedom of Information Act, 1997 for copies of records concerning the question of possible release of prisoners pursuant to the 1998 Act and in particular concerning the possible release of the applicants. Certain information came to light as a result of that request which Mr Farrell states indicates that the Minister has indicated on various occasions and to various persons that the applicants will never be afforded early release under the provisions of the Good Friday Agreement. For example, Mr Farrell exhibits an extract from the Dáil Reports for the 21st April 1998, which predates even the conviction of the applicants for the offences for which they are
currently serving sentences, in which the Minister, Mr John O'Donoghue stated in the Dáil as follows:
"While emphasising that I will not speculate about the implications of the Agreement for individual cases, it is right that I should comment on one case, that is the case of those facing charges arising from the murder of Detective Garda Jerry McCabe which has been the subject of certain media speculation, While obviously it would be inappropriate to comment in detail on any case pending before the courts, the Government has made it clear in its contacts with all groups its view that persons who may be convicted in connection with this murder will not come within the ambit of the Agreement."
Mr Farrell exhibits a second Dáil Report extract dated 9th February 1999, which is shortly after the applicants were convicted and sentenced, in which the Minister stated as follows:
"I refer to speculation on the question of early release for those who have been convicted of the killing of Garda McCabe. I have to say, A Cheann Comhairle, that I wonder how many different ways we have to say 'No' for people to get the message that those involved will not have the benefit of the early release terms contained in the Good Friday Agreement. There has been clarity from the outset – from the time the Good Friday Agreement was negotiated – about this and the position has been made clear by both myself and the Taoiseach on numerous occasions. The fact that there will now be- 14 - manslaughter rather than murder convictions does not alter the Government's stance on this issue on iota.
There has been some speculation about a legal case being taken on the basis that the people involved have a legal entitlement to be released under the Good Friday Agreement. I can assure the House that any such action will be vigorously resisted by the State. I have consulted with the Attorney General about this matter and he assures me that after the Good Friday Agreement the position in law remains that releases continue to be a matter for decision by the Government under the Offences Against the State Act, 1939 and the Minister for Justice under the Criminal Justice Act, 1960. It is the case that the Criminal Justice (Release of Prisoners) Act, 1998, which was enacted in the context of the Good Friday Agreement, establishes a Release of Prisoners Commission but their role is purely advisory. Moreover, the Commission can only consider cases of persons specified by the Minister to be "qualifying prisoners" and, obviously I do not regard the persons involved as falling into that category so the question of referring their cases to the Commission will not arise."
Mr Farrell exhibits other correspondence which was written on the Minister's behalf by his Private Secretary in which reference is made to the fact that it has been stated many times in public by both An Taoiseach and the Minister that the prisoners referred to, namely the applicants herein, do not qualify for early release under the terms of the Good Friday Agreement, and that this position has not altered and that these prisoners will serve their full sentences imposed upon them by the Courts. Mr Farrell, states that these
views were expressed despite the fact that there had, up to that point, been no substantive reply to the Applicants' application for recognition as qualifying prisoners and for early release.
Mr Farrell then avers that about 57 prisoners in the State and 444 prisoners in Northern Ireland have been released as of the date of his affidavit under the terms of the Good Friday Agreement, and that some of these were convicted of offences similar to the offences of which the applicants were sentenced, being for murder of members of the Royal Ulster Constabulary, others of indiscriminate murders and multiple murders, and others of the murder of members of An Garda Síochána. He states that he believes that the Minister has prejudged the applicants' applications, while continuing to inform persons that the applicants will not be released but at the same time refusing or failing to communicate with the applicants themselves, or with their legal representatives. He says he believes that the Minister is acting mala fide and/or in an improper manner and an unlawful manner and contrary to his duty to properly consider the applications made on behalf of the applicants.
Each of the applicants has sworn an affidavit as already set out. Those affidavits add nothing to the facts set out in Mr Farrell's said affidavit except that each applicant avers that he is not affiliated to any organisation that has not established or is not maintaining an unequivocal ceasefire, and also that in the Book of Evidence served on each of them there is a Statement from a Chief Superintendent that he believed, based on confidential information, that each applicant was a member of the IRA, and further that each, while
awaiting trial and after conviction, was detained in Portlaoise Prison with the group of prisoners regarded by the prison authorities as associated with the Provisional IRA and who, subsequent to the Good Friday Agreement, were recognised as qualifying prisoners for the purpose of the early release provisions of that agreement, and also that each of them was transferred to Castlerea Prison on the 17th December 1999, along with others, in the grouping referred to by the Minister as "the PIRA group of prisoners".
In his affidavit sworn on the 6th March 2002, Mr Farrell exhibits further material containing statements by An Taoiseach, the Minister and others in relation to the applicants in the context of their claims to be qualifying prisoners under the Good Friday Agreement, all reiterating the Government's stated position that the applicants do not qualify for release under the terms of the Agreement and that this position will not change in the future.
Mr Farrell goes on to say that in October 2001 he made a further application under the Freedom of Information Act, 1997, for copies of all records relating to the applicants' request for release. He says that on the 21st December 2001 he received a number of additional documents which he exhibits. One of the documents lists a number of PIRA prisoners serving life sentences and who were all released from custody, on renewable temporary release, prior to the Good Friday Agreement (the Court was informed that this list contained the names of 44 such prisoners, their names being redacted from the list itself). The document went on to say that all met the criteria for consideration under the provisions of the Good Friday Agreement i.e. their offences pre-date the Agreement and
were committed on behalf of an organisation to which the terms of the Agreement apply. It is therefore recommended that their cases be referred to the Release of Prisoners Commission for their advice in respect of full release. Another document exhibited is headed:
Question 3
Question: How do prisoners qualify for release under the Good Friday Agreement?
Answer: Both Governments have put in place mechanisms to provide "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". In this jurisdiction this includes prisoners convicted of similar offences before the Special Criminal Court.
Prisoners affiliated to organisations which have not established or are not maintaining a complete and unequivocal ceasefire will not benefit from the early release mechanism set up under the Agreement. The Government has taken the view that prisoners who are or were affiliated to two of the Republican organisations – the Provisional IRA and the INLA – and whose offences were committed before the date of the Agreement, qualify for consideration under the terms of the Agreement.
The Government has not, to date, decided that prisoners who are or were affiliated to other republican organisations should qualify."
Another document exhibited and which was obtained under the Freedom of Information Act, 1997 is a document headed "Arrangements for Release of Prisoners in the South under the terms of the Good Friday Agreement".
This document is in question and answer format and contains a number of questions and the appropriate prepared answers. The second question on this document is:
"Will prisoners convicted at any time after 10th April 1998, for offences committed before 10th April 1998 be covered by the arrangements/scheme?"
The answer to this question is: "Yes, subject to the case of any person convicted of the murder of Detective Garda Gerry McCabe (see 4 below)."
Question 4 is:
"Why is an exception being made in the cases of any person convicted of the murder of D/Garda Gerry (sic) McCabe?"
The answer to this question is stated to be:
"The Government took a definite position that it was not prepared to include this one case in the final arrangements for prisoner releases. This was a political judgment made- 19 - against the background of the need to ensure public support for the terms of the Agreement. It is not a question generally of applying different standards in the case of persons convicted of the murder of Gardaí. Persons convicted of the murder of other gardaí – who have already served long sentences – will be covered by the prisoner release arrangements."
Finally Mr Farrell exhibits two further documents received. The first is what seems to be a copy (with names deleted) of a response by way of refusal by the Minister to an application by a prisoner that he be considered a qualifying prisoner for the purpose of the early release programme. This letter says:
"I refer to your application for early release as a result of the Multi-Party Agreement and the above Act.The information available to the Minister inclines him to be of the view that you are not a qualifying prisoner under the Criminal Justice (Release of Prisoners) Act, 1998 because there is no indication that the offences were committed in connection with the affairs of Northern Ireland. On this basis, it is proposed not to refer your case to the Release of Prisoners Commission. However, before making any decision, the Minister would wish to take into consideration any information you might wish to make available to him as to why you should be regarded as a qualifying prisoner."
The second document is a Press Release issued by the Minister's Department on the 17th December 1999. It states as follows:
"The Department of Justice, Equality and Law Reform has confirmed that the remaining Provisional IRA prisoners in custody were transferred from Portlaoise Prison to Castlerea Prison today.The Department has also confirmed that a number of these prisoners will be granted temporary release (renewable) under the terms of the Criminal Justice Act, 1960, in the coming days.
Those serving sentences in connection with the killing of Detective Garda Jerry McCabe are not being granted temporary release."
The final affidavit of Mr Farrell is that sworn on the 9th October 2002. He refers to the correspondence exhibited in his first affidavit and ending with a letter from him to the Minister dated 21st July 2001. He states that by letter dated 5th June 2002, the Minister informed him that he had not specified the applicants as qualifying prisoners, and that he did not consider it appropriate to make a request to the Release of Prisoners Commission for advice in relation to them. The letter goes on to say that the decision whether or not to specify the applicants as qualifying prisoners was not subject to the procedures which Mr Farrell had set out in his letters, such as the giving of reasons, an opportunity to respond and be heard and so on. Mr Farrell refers to the fact that even this letter does not give any reasons for the decision not to specify the applicants as qualifying prisoners. Mr Farrell also exhibits other material that has reached him and relating to the fact that the
applicants are affiliated to the PIRA and are in the same position as regards the similarity of the offences for which they are serving sentences, as others who have been released.
In all the above circumstances, Mr Farrell states that he believes that the Minister and the Government have made a purely political decision to treat the applicants differently from others convicted of similar offences linked with organisations to which the terms of the Good Friday Agreement apply, and have decided for political reasons unconnected with the criteria for consideration for release under the provisions of that Agreement, not to certify them as qualifying prisoners or agree to their release, in contrast to the treatment of other persons convicted of similar offences.
The Respondents' Statement of Opposition:
As I have already stated there is no replying affidavit filed on behalf of the Respondents. There is however a Statement of Opposition which sets out in pleading form the Respondents' case. It is a complete traverse in effect. The following matters are denied specifically:1. That the applicants are entitled to any of the declarations sought.2. That the applicants are qualifying prisoners and that any case has been made out that the applicants could come within the description of qualifying prisoners in the 1998 Act
- 22 - 3. That the applicants are entitled to be released from custody4. That the provisions of the Good Friday Agreement can be invoked by the applicants
5. That the 1998 Act confers any entitlement to release upon the applicants
6. That the applicants are entitled to any of the procedures set out in paragraph 3 of the Statement of Grounds
7. That the applicants are entitled to have their applications heard within a reasonable time, or any time frame
8. That the applicants are entitled to have their applications determined by a person, other than the Minister, who is not tainted by pre-judgment
9. That any of the applicants' legal or constitutional rights have been infringed
10. That the applicants are entitled to equality of treatment as compared with others in comparable circumstances, either by virtue of the 1998 Act or otherwise, and that any rights under Article 40.1 of the Constitution, and/or Article 14 of the European
Convention on Human Rights, and Article 26 of the International Covenant on Civil and Political Rights
The Statement of Opposition from paragraphs 13 onwards pleads the following:
1. The decision of the Minister as to whether to specify the applicants as qualifying prisoners and/or the decision as to whether to grant them early release are executive decisions to be made by the Minister
2. When exercising this executive power, the Minister is performing an executive function, and not a judicial function, and is not required to act judicially, and that by virtue of the separation of powers, the Minister's decisions in this regard are not susceptible to judicial review
3. The doctrines of natural justice, constitutional justice and fairness of procedures have no application to the Minister's decisions in this regard
4. The proposition put forward by the applicants that the 1998 Act conferred any power of release upon the Minister is incorrect and unsound in law, and that the Minister's powers of release derive from the Criminal Justice Act, 1960 and the rules and regulations made thereunder and provisions of the Offences Against the State Act, 1939
5. The applicants are not entitled to be released from custody whether for the reasons stated or at all
6. Specification as a Qualifying prisoner is a privilege to which a prisoner has no entitled
7. Neither the British-Irish Agreement done at Belfast on 19th April 1998 nor the Multi-Party Agreement ("the Good Friday Agreement") confer any right upon the applicants which are capable of being sued upon in the courts
8. The Minister has not specified the applicants for the purpose of Section 3(2) of the 1998 Act to be qualifying prisoners and does not intend to do so and that the applicants are being informed of the position in that regard
9. A decision whether to commute or remit a sentence or punishment imposed by a court and/or to release any prisoner is not subject to review on grounds of procedural fairness or otherwise.
The Applicants' Legal Submissions:
In his legal submissions to this court, Dr Forde submits that the main issue in this case is that the Minister has failed to treat the applicants equally with others who are similarly situated. In other words, he is submitting that the Minister has specified persons to be
qualified prisoners for the purposes of the 1998 Act, who are in an identical situation to the applicants, who he says meet the criteria for such specification which have been applied to those others. This failure, he submits is a discrimination against the applicants.
Dr Forde submits that it is clear from the evidence that the Minister has failed to give any reasons for his decision not to specify the applicants as qualifying prisoners, has failed to give the applicants any opportunity (such as has been given to others) to be heard in relation to their applications to be so considered, or to make any representations in relation to any such decision.
He also submits that the constitutional guarantee of equality before the law means that persons in comparable circumstances must be treated similarly unless there is a satisfactory objective justification for dissimilar treatment. He submits that it is uncontested by the Respondents that the applicants meet the criteria required to be fulfilled in order to be specified as qualifying prisoners, and that the failure of the Minister to give any substantive reply to the applicants' solicitors requests for reasons and his failure to disclose what materials he has considered in arriving at his decision, must mean that there are no such reasons or materials, and that the Minister is therefore acting unlawfully. In this regard, Dr Forde relies upon the decision of Barron J. in The State (Daly) v. The Minister for Agriculture (1987) IR 165 in which the learned judge found that where a Minister is by an Act given a discretion by words such as "as the Minister shall consider" or "the Minister is of the opinion", he is not thereby given a
discretion to act in any manner he pleases. At page 172 of that judgment, the learned judge states:
"Such powers may only be exercised in conformity with the Constitution. The view of the Minister must be seen to be bona fide held, to be factually sustainable and not unreasonable. If no reasons have been given for the exercise of the power, then this court cannot review the exercise of the power in the light of these criteria.The court must ensure that the material upon which the Minister acted is capable of supporting his decision. Since the Minister has failed to disclose the material upon which he acted or the reasons for his action there is no matter from which the court can determine whether or not such material was capable of supporting his decision. Since the Minister continues to refuse to supply the material, it must be presumed that there was no such material.
In the result therefore the Minister was entitled to dispense with the services of the prosecutor without warning him that he proposed to act in that manner. However, once his decision was challenged, he was obliged to disclose to the prosecutor the material upon which he had acted and to give his reasons for so doing. The Minister has failed to show that he acted intra vires."
Dr Forde also referred the court to the judgment of the Supreme Court in Murray v. Ireland and the Attorney General (1991) ILRM 465, where it was held that the length
of time which a person sentenced to life imprisonment spends in custody and the extent to which, if any, such person obtains temporary release is a matter which under the constitutional doctrine of the separation of powers rests entirely with the executive, but that the exercise of these powers by the executive is subject to supervision by the courts which should intervene only if it can be established that such powers are being exercised in a manner which is in breach of the constitutional obligation of the executive not to exercise them in a capricious, arbitrary or unjust way. Dr Forde says that this is the very allegation in this case, namely that the executive is acting in a capricious, arbitrary and unjust way, in the manner in which the Minister has failed to specify the applicants as qualifying prisoners, and in refusing to give his reasons or to disclose the materials on which he has relied in coming to his decision. He says that the behaviour of the Minister in this regard is capable of review by this court.
In this regard, Dr Forde has also referred the court to the decision of the Supreme Court in Doherty v. The Governor of Portlaoise Prison and others, Supreme Court, 14th February 2002 – unreported, (hereafter referred to as "the Doherty case") which dealt on a different set of facts and circumstances, with Mr Doherty's claim to be entitled to be specified as a qualifying prisoner under the 1998 Act. In particular, Dr Forde referred to the judgment delivered by Mr Justice Murray in that case, where the learned judge referred to the wide discretion conferred upon the Minister as to how he should exercise his powers of release under the Offences Against the State Act, 1939 and the Criminal Justice Act, 1960. At page 4 of the unreported judgment, Mr Justice Murray states as follows:
"…The powers of release given or delegated to the Minister pursuant to these enactments confer on him a wide discretion as to how he shall exercise those powers.The exercise of such a power was considered by Finlay C.J. in D.P.P. v. Tiernan (1989) I.L.R.M. 149 at 153 where he described the power of release of a prisoner vested in the executive as "a matter of a policy pursued by the executive at given times and subject to variation at the discretion of the executive". Although that case concerned an imprisonment for life, the same ratio applies to imprisonment for a determinate period (Kinahan v. The Minister for Justice and ors, The Supreme Court, 21st February, 2001, unreported). In Murray v. Ireland and the Attorney General (1991) I.L.R.M. Finlay C.J. held "the length of time which a person is sentenced to imprisonment for life spends in custody and as a necessary consequence the extent to which, if any, prior to final discharge, such a person obtains temporary release is a matter which under the constitutional doctrine of the separation of powers rests entirely with the executive".
It is clear from the foregoing that when the Minister exercises a power of release, he is exercising an executive function of a discretionary nature within the ambit of the enactment conferring those powers. As Finlay C.J. in Murray v. Ireland and the Attorney General went on to state "the exercise of these powers of the Executive is of course subject to supervision by the Courts which will intervene only if it can be established that they are being exercised in a manner which is in breach of the constitutional obligation of the Executive not to exercise them in a capricious, arbitrary or unjust way". None of
- 29 - these particular grounds have been raised here but of course Finlay C.J. was not excluding review by the Courts should the Minister exercise his discretion in a manner which conflicted with statutory provisions, if any, governing its exercise."
In relation to what Dr Forde submits is the capricious, arbitrary and unjust exercise of the Minister's discretion, he points to the fact that the Minister has failed to file any affidavit in response to the affidavits filed on behalf of the applicants, thereby depriving the applicants of an opportunity to cross-examine the deponents of such affidavits, were they filed, and to the complete absence of any reasons being given by the Minister for his refusal to specify the applicants as qualifying prisoners, and a failure to disclose any materials upon which he relied when deciding as he has. Since, he says, on any objective examination of the undisputed facts said by the applicants to mean that they meet the required criteria, it is clear that the applicants meet these criteria, the Minister's discretion has been exercised in a capricious, arbitrary and unjust way.
He also submits that the Minister has clearly pre-judged the applicants' application in view of the statements made by the Minister and An Taoiseach made both prior to the applicants' convictions and thereafter that those responsible for the killing of the late Detective Garda McCabe would never be given the benefit of the early release provisions of the Good Friday Agreement.
He reiterates the essential constitutional requirement that persons in similar situations should receive similar treatment under the law, unless justifiable reasons are given for the
unequal treatment. In this regard he has referred the court to the United Nations Human Rights Committee decision dated 4th April 2001 in Kavanagh v. Ireland, and also to other cases from this jurisdiction, in particular the decision of Budd J. in An Blascaod Mor Teo. v. Commissioners of Public Works in Ireland, unreported, 27th February 1998.
Dr Forde also submits that the applicants have acquired rights directly from the British-Irish Agreement and the Good Friday Agreement, even though they themselves were not a party to those agreements. He says that individual rights were created by them, and that the Minister by his behaviour has caused a breach of those rights.
The Respondents' Legal Submissions:
Sean Ryan SC for the Respondents has submitted that the 1998 Act was enacted by the Oireachtas with the intention of fulfilling the Irish Government's obligations under the British-Irish Agreement and under the Good Friday Agreement, both done at Belfast on the 10th April 1998. He says that the purpose of the 1998 Act was to establish the Release of prisoners Commission and to provide for its composition, operation, funding and dissolution. In particular, he submits, the Act does not provide any power of release, or purport to create any right of release in any prisoner's favour, including the applicants.
He submits that the Minister's powers of release are contained in The Offences Against the State Act, 1939, the Criminal Justice Act, 1951, and the Criminal Justice Act, 1960.
He refers to the absolute discretion vested in the Minister in the exercise of his powers of release, a power which is an entirely executive function.
In particular, Mr Ryan submits that the 1998 Act confers no right in favour of any person to be specified as a qualifying prisoner. The Act has left that decision, whether or not to consider a person for release as a qualifying prisoner, entirely to the Minister, and that he has an absolute discretion whether or not to so consider releasing any person.
Mr Ryan submitted that the 1998 Act created no personal rights such as those contended for by the applicants in this case.
He says that the fact that a person makes an application to be so considered does not mean that the Minister must consider the matter at all. In this case he says that the Minister and the Government have said from the very outset that those responsible for the killing of Detective Garda McCabe would not be considered for release under the provisions of the Good Friday Agreement, and that the applicants can have been under no misapprehension in that regard having regard to the specific statements made at relevant times by both the Minister and An Taoiseach, both prior to the coming into operation of the 1998 Act and thereafter on a number of different occasions, as has been deposed to by the applicants in their grounding affidavits.
Mr Ryan relies on the provisions of the 1998 Act itself.
He refers to the fact that "power of release" is defined in the Act as meaning "a power conferred on the Government or the Minister, as the case may be, by or under any enactment to provide for –
(a) the release (including the temporary release) of prisoners from prisons or places of detention, or
(b) the remission or commutation of any punishment imposed by any court exercising criminal jurisdiction",
and that "qualifying prisoners" shall be construed in accordance with section 3(2) of the Act.
As I have already said earlier, Section 3(2) states:
"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."
Section 3(4) of the Act states that "relevant provisions" as used in Section 3 means the provisions of the Multi-Party Agreement which appear under the heading "Prisoners" in that Agreement, and which "for convenience of reference" are set out in the Schedule to the 1998 Act.
Mr Ryan submits that it is clear that this Act did not itself create any new power of release, nor did it create a right in favour of any person to be specified as being a "qualifying prisoner". He says that it is only in the event that the Minister is considering a person for release for the purpose of the relevant provisions of the Multi-Party Agreement, that he must then request advice from the Commission. Having received that advice, the Minister is not even bound to act on that advice, although, as provided in the Act he must have regard to it.
Mr Ryan states that the Act did not lay down any list of factors which the Minister is obliged to consider when deciding whether or not to exercise his discretion to specify a person as a qualifying prisoner. That is an executive function in which he has an absolute discretion, although M Ryan agreed that this discretion was subject to the proviso that it cannot e exercised in a way that is capricious, arbitrary or unjust. Subject to that proviso, Mr Ryan submits that the Minister's actions in this regard are not capable of being the subject of judicial review. He of course submits that in all the circumstances of this case, there is no evidence that could possibly substantiate the applicants' contention that the Minister has acted capriciously, arbitrarily or unjustly.
Referring to the Doherty decision (supra), Mr Ryan says that case is authority for the proposition that the criteria or policy considerations by reference to which a Minister decides to exercise any power of release vest within his discretion, and that the Minister is entitled to take into account any consideration which he considers material to the exercise of that discretion unless it can be shown that it is capricious, arbitrary or unjust. He says that having regard to the decision of the Supreme Court in the Doherty case, there is no obligation on the Minister to give reasons for his decision as to whether or not to release a prisoner or as to whether or not to specify a prisoner as a qualifying prisoner.
Mr Ryan submits that given that the Minister is exercising a purely executive function, as opposed to a judicial function, no question of the fair procedures such as contended for by the applicants in this case arise.
Finally, Mr Ryan submits that the Good Friday Agreement cannot give rise to individual rights in favour of the applicants which are capable of being sued for in the courts. He relies on the Doherty decision in this regard and in particular to a passage in the judgment of Mr Justice Murray where at page 7 of the unreported judgment, the learned judge states:
"There is no provision of the 1998 Act which enacts or purports to enact any of the provisions of the Multi-Party Agreement as part of our legislation. That agreement represents engagements and commitments solemnly entered into by the parties to the- 35 - agreement. As is usual in such agreements, the obligations are inter partes. It does not confer rights on particular individuals which may be invoked before the courts."
Conclusions:
First of all I am satisfied, as was Murray J. in the Doherty case already referred to, that no individual rights are conferred upon the applicants by the Multi-Party Agreement, and for the reasons so clearly enunciated by that learned judge in that case.
I am also satisfied that when the Minister is exercising his powers of release, he is exercising an executive function of a discretionary nature within the ambit of the enactment conferring those powers, as stated by Murray J. in the Doherty case already referred to, and that the courts can intervene by way of judicial review, but only in circumstances where it can be established that that the powers in question are being exercised in a manner which is in breach of the constitutional obligation of the executive not to exercise them in a capricious, arbitrary or unjust way, as stated by Finlay CJ in Murray v. Ireland and the Attorney General (supra).
Before it is necessary to go on to consider whether in the case of the applicants, the Minister has acted in such a way, I must first be satisfied that the 1998 Act obliges the Minister to consider a person, and in particular the applicants in this case, for release in circumstances where they appear to meet the necessary criteria, and to specify those persons as qualifying prisoners, or in the event of his not so specifying them, to give his
reasons for his decision not to do so. In this regard it seems clear, and it is not in fact controverted by the Respondents since they have filed no affidavit, that the applicants, were they to be considered for release by the Minister, do fall within the category of persons who would be eligible for release under the relevant provisions. They are affiliated to organisations which have maintained and are maintaining an unequivocal ceasefire. They are convicted of offences similar to scheduled offences in Northern Ireland. The offences in question were committed prior to 10th April 1998.
In order to reach a conclusion on this issue it is necessary to examine the Act itself and ascertain the intention of the Oireachtas when it passed the Act. The basis on which the court should interpret legislation is well set out in the judgment of McKechnie J. in the Doherty case at pages 17 – 20 of the unreported judgement. The learned judge referred to the judgment of Finlay CJ in McGrath v. McDermott (1988) IR 258 at page 275 where the then Chief Justice stated:
"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 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 the objectives which to the Court seem desirable. In rare or limited circumstances words or phrases may be implied- 37 - into statutory provisions solely for the purpose of making them effective to achieve their expressly avowed objective."
McKechnie J. also referred to the judgment of the late Mr Justice Budd in Rahill v. Brady (1971) IR 69 at page 86 where that learned judge stated as follows:
"In the absence of some technical or acquired meaning the language of a statute should be construed according to its ordinary meaning and in according to the rules of grammar. While the literal construction generally has prima facie preference, there is also a further rule 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 were, 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 real intention of the legislature".McKechnie J. also referred to the judgment of Lord Reid in Luke v. The Inland Revenue Commissioners in relation to the necessity to adopt a schematic approach to interpretation, where "to apply the words literally is to defeat the obvious intention of the legislation and to produce a wholly unreasonable result."
Applying these long accepted principles of statutory interpretation, I am satisfied that the intention of the legislature as expressed in the 1998 Act is clear and unambiguous. It is firstly clear, as is confirmed in the judgments in the Doherty case, that no new power of
release is given to the Minister in this Act. Those powers emanate from existing legislation already referred to by me. The primary purpose of the Act was to establish The Release of Prisoners Commission, and this is achieved in Section 2. The function of that Commission is clearly set forth in Section 3(1) of the Act.
Section 3(2) is the critical subsection for the purpose of the applicants' submissions. This subsection by its own words gives the Minister, by the use of the words "from time to time as he or she considers appropriate", an absolute discretion as to when he or she shall request advice from the Commission in relation to the exercise, by reference to the relevant provisions (i.e. as defined in Section 3(4) of the Act) of any power of release referred to in subsection 3(1), in relation to persons "specified" by the Minister as qualifying prisoners. Section 3(4) of the Act states that the "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 the 1998 Act. Those relevant provisions are not therefore part of the Act. They are annexed to the Act for convenience of reference only.
If the legislature had intended that the Minister's discretion should be fettered in any way contended for by the applicants, it could have easily said so by setting out the criteria for such specification in the Act, and indicating that the Minister shall specify any prisoners meeting those criteria. The legislature did not do so, and accordingly, it must be presumed that it did not intend to diminish in any way the wide discretion which the Minister already enjoys in relation to the release of prisoners (either temporary or
otherwise) under existing legislation already referred to. That being so, there is no obligation on the Minister to consider any particular person for release, and to therefore specify them as qualifying prisoners, and thereupon to seek the advice of the Commission. It is only in the event of the Minister so considering a person for release, that he is obliged to request the advice of the Commission in respect of any prisoner so specified as a qualifying prisoner. It follows from this, that where there is no obligation on the Minister to enter upon such a consideration of the applicants, he cannot be said to have acted capriciously, arbitrarily or unjustly.
I am satisfied that this was the intention of the Oireachtas, which is clear from the plain and ordinary wording of Section 3, and the Act as a whole. If I had any doubt about the matter, and felt that the Act was in some way ambiguous or unclear (which I am not), I would be entitled to have regard to the words of the then Minister for Justice, Equality and Law Reform, John O'Donoghue T.D. spoken in Dáil Eireann on the 21st April 1998 when he informed the Dáil that the Government had made clear in its contacts with all groups its view that persons who may be convicted in connection with the murder of Detective Garda Jerry McCabe would not come within the ambit of the Agreement. This statement was made prior to the conviction of the applicants, and prior to the passing into law of the 1998 Act on the 13th July 1998. That being the case, it is clear that the Oireachtas passed this Act into law in the full knowledge of the Government's view that those convicted of offences arising out of the said killing would not be considered for release under the terms of the Good Friday Agreement, and that therefore the Minister would not be specifying them as qualifying prisoners. Nothing can have been clearer. For
this court to now find that the Minister is obliged under the terms of the Act to so specify the applicants in the face of clear evidence that the Act was passed in the knowledge that the Minister and the Government did not intend to so do, would be to produce a situation which the legislature can never have intended.
However, as I have already stated, it is my view that the wording of the Act itself clearly indicates that the Minister was put under no such obligation. No words in Section 3(2) of the Act or any other section or subsection of the Act indicate otherwise.
Having so found, it is unnecessary to make any decision in relation to the other reliefs sought by the applicants, and I refuse their application accordingly.
