Supreme Court dismisses appeal; Minister's release discretion unaffected by 1998 Act or Multi-Party agreement.

THE SUPREME COURT

Record No:81/01

Keane, C.J.,

Murphy, J.

Murray, J.

Geoghegan, J.

Fennelly, J.

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, 2001 by Murray, J.

The Applicant is a convicted criminal serving a sentence imposed by the Special Criminal Court for serious offences to which he

pleaded guilty in 1995.

Relying on the provisions of the Criminal Justice (Release of Prisoners) Act 1998 the Applicant seeks an Order setting aside a

refusal of the Second Named Respondent (“The Minister”) to consider the Applicant as being a qualifying prisoner under the

terms of the Agreement Reached in the Multi-Party Talks (the Multi-Party agreement) and refusing to refer his case to the

Release of Prisoners Commission established by the 1998 Act as well as a declaration that he is a qualifying prisoner within the

terms of the said agreement and the provisions of the 1998 Act.

In short the Applicant seeks such declarations as will require the Minister to treat him as a ‘qualifying prisoner’ within the

meaning of the Act and refer his case to the Release of Prisoners Commission so that it may advise the Minister in the exercise

of “any power of release” in relation to him.

The essential purpose of the Criminal Justice (Release of Prisoners) Act 1998 is the establishment of a Commission to advise the

Minister, as the long title to the act puts it, “in specified circumstances” with respect to the exercise by the Minister of “any

power conferred ... on him or her to provide for such release ...”

The Act does not create or confer on the Minister any new power to release prisoners. The definition section, section 1 states

that “ “power of release”, in relation to prisoners, means of power conferred on by the government or the Minister, as the

case may be by or under any enactment to provide for -” the release, including temporary release of a prisoner or the

remission or commutation of any punishment.

Section 2 of the Act having established a commission to be known as the Release of Prisoners Commission (the Commision) goes

on in sections 3 and 4 and to set out its functions and role. These are:

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.

(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 a 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.

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.

In this case we are only concerned with a power of release of the Minister.

From these two sections it is clear that they can have no application to the situation of a prisoner unless firstly the Minister has

at least decided to consider the exercise of a power of release in relation to that prisoner, secondly, the release is being

considered by reference to ‘the relevant provisions’ and thirdly the prisoner has been ‘specified by the Minister’ to be a

‘qualifying prisoner’ for the purposes of those provisions.

It follows that when the Minister is considering whether to exercise a power of release in relation to any prisoner including a

“qualifying prisoner” it is a power which derives not from the 1998 Act but from some other enactment.

Before going on to consider further the actual provisions of the Act, I think it is important to consider first of all the nature of

the Minister’s powers of release in relation to prisoners since the exercise or possible exercise of such a power is the first

element which arises before the Act can have any application at all to a prisoner.

There are various statutory powers pursuant to which the Minister may consider releasing prisoners. These are the Offences

against the State Act 1939 (section 33), the Criminal Justice Act 1951 (section 23) and the Prisoners (Temporary Release)

Rules 1960 made pursuant to Section 2 of the Criminal Justice Act 1960. (SI 67 of 1960).

By reason of the first of the two aforementioned Acts powers have been conferred or delegated to the Minister to release

prisoners and the third of those Acts relates to a regime of temporary release of prisoners for a specified period, with an

obligation to return to prison at its termination, which is implemented by the Governor or person in charge of a prison subject to

the directions of the Minister. 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. 465 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 to 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 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.

However, once the Minister’s power is exercised within the ambit of his discretion then it is a purely Executive discretion not

reviewable by the Courts except in the circumstances referred to above. The history of the release of prisoners in the exercise

of Executive clemency indicates that the exercise of such clemency has always been a privilege accorded to such prisoners and

not something to which they are entitled as of right. It would require express words in a statute to impose on the Minister (or

the government) a positive obligation to release or to consider the release of a prisoner earlier than the normal expiry of his or

her Court imposed sentence.

It follows from the foregoing that when the Minister is considering whether to exercise a power of release he has a very wide

discretion indeed. The exercise of that discretion will reflect a policy pursued by the Executive at the given time (D.P.P. -v-

Tiernan, cited above). He may, for example, decide to release a prisoner on compassionate grounds, for reasons of old age or

other special reasons always having regard to the particular circumstances of the case. The exercise of this discretion is not

generally reviewable by the Courts.

In the present case if the Minister was considering the release of the Applicant for any of the reasons which I have just

mentioned the 1998 Act would have no application because he would not be considering whether to release the Applicant by

reference to the “relevant provisions”, that is those provisions of the Multi-Party agreement which appear under the heading

“Prisoners”. That is what Section 3 of the Act provides and even then it presupposes that the Applicant would have been

specified by the Minister as a qualifying prisoner for the purposes of the relevant provisions.

In fact none of these elements are present in this case.

The Minister has not specified the Applicant to be a qualifying prisoner and is not considering or purporting to exercise any

power of release under any enactment in relation to the Applicant let alone a power of release by reference to the “relevant

provisions.”

These are matters which fall entirely within the Minister’s discretion. Whether he should consider or actually exercise a power of

release in relation to any prisoner, by reference to any particular criteria, is a discretionary matter for the Minister.

The outstanding issue arising from the case made on behalf of the Applicant is whether the 1998 Act, and in particular the

schedule to the Act, imposes an obligation on the Minister to act in a particular way in relation to the Applicant or otherwise

restricts the manner in which the Minister exercises his discretion in respect of a power of release.

The contention on behalf of the Applicant is that the schedule to the 1998 Act, which recites those provisions of the Multi-

Party agreement which figure under the heading “Prisoners”, contains a definition of what constitutes a qualifying prisoner for

the purposes of the 1998 Act. It is submitted that if the provisions recited in the schedule and contained in the Multi-Party

agreement are applied to the situation of the Applicant he comes within the notion of “qualifying prisoner” as therein described.

In particular, the Minister was confined to considering the matters set out in the cited provisions and was not entitled to take

into account other factors such as that the offence in respect of which the Applicant was convicted was not an offence

connected with the Northern Ireland situation. Accordingly, the Applicant asserts that the Minister is bound to treat him as a

qualifying prisoner and refer his case to the Commission so that the Minister may be advised by it regarding his release in

accordance with the terms of Section 3 of the Act.

These submissions appear to be based on a misconception that the provisions of the Multi-Party agreement which are recited in

the schedule form an operative part of the Act. In fact they are included for reference purposes only as Section 3 (4) makes

clear when it states “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.” (emphasis added).

The references to the relevant provisions of the Multi-Party agreement in the Act are simply a means of identifying the kind of

cases to which the process of referral to the Commission under Section 3 will apply.

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

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. The provisions of the Inter Party agreement which appear under the heading

“Prisoners” represent certain commitments entered into by both of the governments with regard to an accelerated programme

for the release of prisoners referred to in those provisions. That is to say that both governments agreed to pursue a certain

policy concerning the release of such prisoners. How the parties to the agreement interpret their mutual obligations is not a

justiciable issue in this case. In my view since the Applicant is not entitled to invoke the terms of the agreement as conferring

on him specific or individual rights under the 1998 Act it is not necessary to enter upon an interpretation of the relevant

provisions of the agreement for the purposes of deciding the issues raised in this case. Having regard to the provisions of the

Act there are particular circumstances in which it might be necessary for the Court to have regard to the terms of the relevant

provisions contained in the Multi-Party agreement. If in a particular case, the Minister had specified a prisoner to be a qualifying

prisoner and had decided to exercise a power of release in relation to that prisoner then an issue could arise as to whether the

power of release was being exercised by reference to the relevant provisions and thus requiring the Minister to take account of

advice from the Commission. In short, the issue would be whether it was a release being made by the Minister by reference to

the relevant provisions. That is obviously not the issue in this case since the Minister simply does not consider he should release

the Applicant and furthermore has not specified him to be a ‘qualified prisoner’.

Accordingly the relevant provisions of the agreement represent stated policy considerations by reference to which the Minister

may, in his discretion, exercise a power of release created by statute.

The 1998 Act is a mechanism which enables the Minister to pursue that policy in a particular manner. All the Act does is to

require the Minister, once he has, in his discretion, decided to release or consider the release of a prisoner by reference to

those provisions, to refer the matter to the Commission, where appropriate, for its advice.

As I have already pointed out this also presupposes that the Minister has specified the prisoner in question as a qualifying

prisoner. Section 1 of the Act provides that “ “qualifying prisoners” shall be construed in accordance with Section 3(2) of this

Act”. Section 3(2) refers to “persons specified by the Minister to be qualifying prisoners for the purposes of “the relevant

provisions.” ” Accordingly, the Oireachtas has not purported to define qualifying prisoner when it enacted the 1998 Act but

specifies what the Minister should do when considering the release of prisoners specified by him as a qualifying prisoner for the

purposes of the relevant provision.

Conclusions

I would summarise my conclusions as follows:

The Minister has statutory powers to release prisoners pursuant to the Acts referred to earlier in this judgment. The 1998 Act

does not confer on him a power or obligation to release prisoners.

The criteria or policy considerations by reference to which he decides to exercise any power of release rest within his

discretion. That discretion is not affected by the 1998 Act which does not oblige him to release or consider the release of a

prisoner by reference to any purposes generally or the provisions of the Multi-Party agreement in particular.

If he decides to release a prisoner by reference to reasons which have nothing to do with the provisions of the Multi-Party

agreement then obviously the procedures specified in the Act could have no application.

If the Minister specifies a person as a qualifying prisoner and is considering that release by reference to the relevant provisions

of the Multi-Party agreement then Section 3 requires him, when appropriate, to refer the matter for advice to the Commission.

That process of referral for advice is the essential mechanism established by the Act and indeed its fundamental purpose is the

establishment of the Commission..

Since the exercise of the power of release of the Minister pursuant to any of the relevant enactments is at all times a matter

for executive discretion he is entitled to take into account any consideration which he considers material to the exercise of that

discretion unless it can be shown that he did so in a capricious arbitrary or unjust way. In this case the Minister decided not to

release the Applicant. In exercising his discretion in this respect he was entitled to take into account all the matters of which

the Applicant now complains. There is nothing in the 1998 Act which inhibits him from doing so and it has not been alleged that

his decision was otherwise arbitrary, capricious or unjust.

In the circumstances I do not consider it is necessary to interpret the relevant provisions of the All-Party agreement or review

the Minister’s interpretation of it. However, in so far as it may be appropriate to consider those matters, I agree with the

judgement of the Chief Justice.

Accordingly, I would disallow the appeal.