Supreme Court dismisses habeas corpus appeal where applicant's crimes predate Good Friday Agreement context.

THE SUPREME COURT

Keane C.J.

Murphy J.

Murray J.

Geoghegan J.

Fennelly J.

81/01

BETWEEN

HENRY DOHERTY

APPLICANT

AND

THE GOVERNOR OF PORTLAOISE PRISON, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE

ATTORNEY GENERAL

RESPONDENTS

JUDGMENT delivered the 14th day of February, 2002 by Keane C.J.

The entering into of what has been generally called “the Good Friday Agreement” was, on any view, a momentous event in the

history of these islands. One of its principal objectives - perhaps its paramount objective - was to bring those who had been

engaged in campaigns of violence into the democratic political system. Among the components of the complex set of

arrangements which were put in place was the release of prisoners who were serving sentences because they had been

engaged in such campaigns, subject to the major proviso that the organisations to which they belonged had abandoned the use

of violence as a means of achieving their aims, whether that aim was a united Ireland or the continuance of Northern Ireland as

part of the United Kingdom. It need hardly be added that this was simply one component in a series of essentially political

arrangements, in many cases reflecting compromises agreed to by the various parties engaged in the process.

The present proceedings concern the proper construction to be given to the legislation introduced in this jurisdiction to give

effect to what were seen as the obligations of the Irish government in relation to the accelerated release of such prisoners.

The Act in question is the Criminal Justice (Release of Prisoners) Act, 1998 (hereafter “the 1998 Act”.)

The facts are not in dispute. Over a period of years stretching from approximately 1970 to 1981, the applicant was convicted of

a number of serious offences, including the possession of firearms, robbery and attempted robbery, both in this jurisdiction and

in Northern Ireland. He escaped at one stage from Long Kesh Prison in Northern Ireland and successfully resisted his attempted

extradition to Northern Ireland. During that period he was directly and personally involved in the establishment of the Irish

Republic and Socialist Party (“the IRSP”) and the Irish National Liberation Army (“the INLA”). In 1981, he was convicted by the

Special Criminal Court of a bank robbery and sentenced to 6 years imprisonment. During the currency of that sentence, which

he served in Portlaoise Prison, he disassociated himself from the IRSP and the INLA and since then has not been involved in any

paramilitary organisation. On the 8th March 1995, he pleaded guilty in the Special Criminal Court to an offence of possession of

a firearm contrary to the relevant provisions of a number of statutes and was sentenced to 8 years imprisonment as and from

the 9th February of that year. On the 20th July 1995, he pleaded guilty in the same court to counts of possession of a firearm

giving rise to an inference of an unlawful purpose contrary to a number of statutory provisions. In each case, the sentences of

two years imposed were to run concurrently as and from the date of the expiry of the sentence of 8th March 1995. Assuming

that he is entitled to the normal remission in respect of these sentences, his scheduled release date is the 8th August 2002.

It is, accordingly, not in dispute that, at the time the applicant was sentenced in 1995, he was no longer associated with any

paramilitary organisation and that the offences to which he pleaded guilty had not arisen out of the Northern Ireland situation.

The 1998 Act provides for the establishment of a body to be known as the “Release of Prisoners Commission” (hereafter “the

Commission”) whose function is to advise the second named respondent (hereafter “the Minister”) when requested so to do

with respect of any power of release in relation to those specified by the Minister to be “qualifying prisoners”. The applicant,

who claimed to be such a “qualifying prisoner”, asked the Minister to request the Commission to advise him with respect to his

early release, but the Minister declined so to do.

The Minister, in correspondence with the applicant’s solicitors, gave three grounds for his refusal to specify the applicant as

being a “qualifying prisoner”, i.e.,

(1) that the offences in respect of which the applicant was serving terms of imprisonment were not committed in

connection with the situation in Northern Ireland;

(2) that he was not when the offence was committed a member of an organisation to which the arrangements established

under the Good Friday Agreement applied; and

(3) that the relevant offences were not similar offences to “scheduled” offences in Northern Ireland, this being, it was

said, an essential precondition to a person being specified as a “qualifying prisoner”.

Those grounds were set out on behalf of the Minister in correspondence which followed the institution of proceedings in the

High Court by the applicant in which he was granted leave to apply by way of judicial review for an order of mandamus directing

the Minister to respond in writing to the applicant’s request to him. The applicant thereupon instituted the present proceeding in

which, in addition to claiming relief by way of habeas corpus, he sought

(1) an order of certiorari by way of judicial review quashing the decision of the Minister not to consider the applicant as

being a qualifying prisoner and refusing to refer the applicant’s case to the Commission;

(2) declarations by way of judicial review that the applicant was convicted of similar offences to scheduled offences in

Northern Ireland, was not affiliated to an organisation which had not established or was not maintaining a complete and

unequivocal ceasefire and was a qualifying prisoner within the terms of the requisite provisions of the Good Friday

Agreement and the 1998 Act.

A statement of opposition having been filed on behalf of the respondents, the matter came on for hearing before McKechnie J in

the High Court. In a careful and comprehensive judgment, he concluded that the Minister was entitled to rely on the first

ground referred to in the correspondence - that the applicant was not serving a term of imprisonment in respect of offences

committed in connection with the Northern Ireland situation - in declining to specify the applicant as a “qualifying prisoner” but

was not entitled to rely on the other two grounds.

In the light of those findings of the learned High Court judge, one would have expected the order of the High Court to have

dismissed the application for relief by way of habeas corpus, certiorari and declarations. For reasons which are not clear,

however, the order, as passed and perfected, grants an order of certiorari quashing the decision of the Minister not to consider

the applicant as being a “qualifying prisoner”. In his submissions to this court on behalf of the applicant, Mr. Brendan Grogan SC

accepted that the order did not reflect the judgment as delivered by the learned High Court judge and both he and Mr. Sean

Ryan SC, on behalf of the respondents, approached the case on the basis that the essential issue with which this court was

now concerned was whether the trial judge was correct in concluding that the Minister was entitled not to specify the applicant

as a “qualifying prisoner”. No notice to vary the judgment of the trial judge in respect of the other two grounds had been

served on behalf of the respondents.

Before turning to the relevant provisions of the 1998 Act, with which this case is concerned, I should point out that the Good

Friday Agreement consists of two documents. The first is what is described as “the multiparty agreement”. The second is what

is described as the “agreement between the government of the United Kingdom of Great Britain and Northern Ireland and the

government of Ireland”, which was executed on behalf of the two governments on the same day as the multiparty agreement

was assented to by the parties thereto, i.e., the 10th April 1998, the latter document being set out in Annex 1 to the

agreement.

The long title of the 1998 Act describes it as an Act to

“make further provision in relation to the release of prisoners or the remission or commutation of their sentences and,

for that purpose, to establish a body to be known as the Release of Prisoners Commission.”

S.2 of the Act provided for the establishment of the Commission. S.3 then went on to provide as follows:-

"(1) The function of the Commission shall be to advise, on being requested to so do under s.s. 2 of this section the

Minister with respect to the exercise by reference to the relevant provisions of any power of release in relation to

prisoners mentioned in that subsection.

(2) The Minister shall, from time to time as he or she considers appropriate, request the Commission to give advice with

respect to the exercise, by reference to the relevant provisions, of any power referred to in s.s.(1) of this section in

relation to persons specified by the Minister to be qualifying prisoners for the purposes of these provisions (in this Act

referred to as ‘qualifying prisoners’) and the Commission shall comply with such a request...

(3) In this Section ‘relevant provisions’ means those provisions of the agreement reached in the multiparty 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.”

S.4 provides that

“In considering whether to exercise, by reference to the relevant provisions, any power of release in relation to

qualifying prisoners, the Minister or the government, as the case may be, shall have regard to the relevant provisions

and the advice concerned given by the Commission under s.3 of this Act.”

The Schedule is as follows:

“Schedule

Provisions of the agreement reached in the multiparty talks which appear under the heading ‘Prisoners’

1. Both governments will put in place mechanisms to provide for an accelerated programme for the release of

prisoners, including transfer 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’.) 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 the qualifying

prisoners while allowing account to be taken of the seriousness of the offences for which the person was convicted

and the need to protect the community. In addition, the intention would be that, should the circumstances allow

it, any qualifying prisoners who remained in custody two years after the commencement of the scheme could 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 the release, including assistance directed towards

availing of employment opportunities, retraining and/or reskilling and further education”.

The language used in these excerpted provisions of the multiparty agreement, it will be noted, are not what one would

associate with a purely legal document, as witness the informal phraseology used in the third sentence of paragraph 3. That

choice of language reflects the political nature of the arrangements embodied in the document, but, for present purposes, it is

sufficient to note that, while “qualifying prisoners” are to be those “convicted of scheduled offences in Northern Ireland or, in

the case of those sentenced outside Northern Ireland, similar offences”, there is no indication of what is meant by a scheduled

offence. However, an affidavit sworn by a Northern Ireland solicitor, Padraigin Drinan, deposed to the fact that the offences of

which the applicant was convicted in March 1995 and July 1995, if committed in Northern Ireland, would be scheduled offences

within the meaning of Schedule 4 of the Northern Ireland (Emergency Provisions) Act 1973.

Schedule 4 of the Northern Ireland legislation includes a wide range of offences, including murder, manslaughter, arson and riot,

and also extending to offences in respect of firearms.

The argument on behalf of the applicant is as follows. He is currently serving sentences in Portlaoise Prison in respect of

offences which, in the language of paragraph 1 of the provisions in the Schedule to the 1998 Act are “similar offences” to

“scheduled offences in Northern Ireland”. He is not affiliated to an organisation which has not established or is not maintaining a

complete and unequivocal ceasefire and is, accordingly, a “qualifying prisoner” who is entitled to benefit from the arrangements

put in place by the 1998 Act. The Minister was not entitled to deprive him of his status as a “qualifying prisoner” by deciding

that prisoners convicted of crimes which were not connected with the Northern Ireland situation could not be regarded as

“qualifying prisoners”. No such provisions appears anywhere in the 1998 Act and the courts are not empowered to rewrite

legislation in order to make it conform with what is presumed by the court to have been the intention of the Oireachtas.

However, the provisions of s.4 of the Act itself provide an insuperable obstacle to that submission. They expressly empower the

Minister to specify the persons who are to be “qualifying prisoners” for the purposes of the relevant provisions of the multiparty

agreement. That was the manner in which the Oireachtas chose to implement the obligations imposed on the State by virtue of

either or both documents comprising the Good Friday Agreement. I have no doubt that the Minister, in exercising the power

conferred on him by the Oireachtas to specify the persons who should be “qualifying prisoners” for the purposes of the relevant

provisions of the Good Friday Agreement, was entitled to have regard to whether the offences in respect of which they were

serving terms of imprisonment were not merely scheduled offences in Northern Ireland or similar offences in this jurisdiction but

also arose out of the situation in Northern Ireland which had led to the entering into of the Good Friday Agreement. As I have

already pointed out, the provisions relating to prisoners set out in the Schedule are all excerpted from the multiparty

agreement, a document couched, in this and other sections, in language which one would not normally associate with a

document intended to impose precise and specific obligations on the parties. In the agreement between the two governments,

the government of Ireland undertook to implement, where appropriate, the provisions of the multiparty agreement.

The Minister was fully entitled to conclude that the parties who had assented to the provisions contained in the multiparty

agreement had not contemplated the accelerated release of prisoners convicted of crimes having nothing whatever to do with

the political situation which has existed in Northern Ireland for many years. The 1998 Act, indeed, did not confer any power of

release in favour of prisoners: it essentially provided for the establishment of a Commission to advise the Minister as to the

exercise by him of his existing powers of release in relation to those he specified as “qualifying prisoners”. It was for the Minister

alone to decide what persons were “qualifying prisoners” and whether he should request the Commission to advise him as to the

exercise by him of his powers of release. Whether one construes the provisions literally or in a purposive manner, the result is

the same: it was the clear intention of the Oireachtas that the Minister, should (a) decide what persons should be regarded as

“qualifying prisoners” having regard both to the relevant provisions of the multiparty agreement and the subject matter of that

agreement and (b) request the Commission, if he thought it appropriate, to advise him as to the exercise by him of the power of

release already vested in him in relation to such prisoners. That did not confer on the applicant in this case, having regard to

the admitted fact that he is not serving a term of imprisonment in connection with any offences arising out of the Northern

Ireland situation, any right to be treated by the Minister as a qualifying prisoner.

I would dismiss the appeal and affirm the judgment of the learned High Court judge. I would substitute for the order of the High

Court an order dismissing the application for relief by way of habeas corpus, certiorari and declarations.