Supreme Court allows appeal quashing Minister's detention order due to lack of inquiry into release condition breach.

THE SUPREME COURT

Record No. 340/02

Murray, J.

McGuinness, J.

Fennelly, J.

GLEN DOWLING

APPLICANT/APPELLANT

-V-

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Judgment of Murray, J. delivered on the 22nd day of May, 2003.

I am in complete agreement with the judgment of Mr Justice Fennelly and the order which he proposes. However, there are a few

brief observations of my own which I would wish to make in relation to the powers of the Minister in a case of this nature.

It was argued, inter alia, on behalf of the Minister that the nature and purpose of the “monthly renewable temporary release” granted

to the Appellant on the direction of the Minister was to allow the Appellant temporary release for successive monthly ‘trial’ periods

and that the Minister having exercised his discretion to permit the temporary release for such trial periods could, at any stage, refuse

to grant a further monthly ‘trial’ period in his complete discretion. As Mr Justice Fennelly very clearly explains in his judgment, the

grant of “monthly renewable temporary release” cannot, in the circumstances of this case, be considered as constituting a discrete

release for each successive month for which the Appellant was at liberty but rather a more general temporary release subject to the

specified conditions of his release being complied with, including a duty to report on the 23rd of each month to sign on at Mountjoy

prison and see a Probation and Welfare Officer. This latter condition seems to me more consistent with a monitoring of the Appellant

while he was on temporary release rather than the termination point of discrete releases each month.

Of course it is inherent in the wide discretion which the Minster has whether or not to grant temporary release in the first place that

he should have the flexibility of authorising the temporary release of a prisoner for a specified trial period of quite short duration, if

that is what the Minster feels is appropriate. But that is not what occurred here.

The termination of the Appellant’s temporary release in this case occurred because it had come to the Minister’s attention that he

was “the subject of a garda investigation into a serious crime,” as stated in the letter sent to him on behalf of the Minister on the

16th March, 2000. As this court made quite clear in The State (Murphy) –v- Kielt [1984] I.R. 459, the mere fact that a prisoner has

been charged with an offence is an insufficient reason for the revocation of his temporary release. In so holding in that case, Griffin J.

explained that “Charges are frequently dropped or not proceeded with and, if a temporary release can be revoked merely or solely

because the person released has been charged with an offence, what of the apparent injustice done to such a person who, in the

period intervening between the charge and the dropping of the charges, has lost the liberty to which he would otherwise had been

entitled under the Act and Rules?” (emphasis added). This reasoning must apply with even greater force in circumstances, such as

this case, where a prisoner on temporary release was solely the subject of an investigation in relation to an alleged offence, arrested

for that purpose, but never charged with any offence.

However, in applying the principles of constitutional justice or fairness to these matters, the special status of the prisoner and the

particular responsibilities of the relevant authorities must be taken into account. In Murray –v- Ireland the and Attorney General

[1991] I.L.R.M. 465 Finlay, C.J. held “The length of time which a person who 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;” Finlay, C.J., in D.P.P. –

v- Tiernan [1989] I.L.R.M. 149 at 153 described the power of release of a prisoner vested in the Executive as “a matter of policy

pursued by the Executive at given times and subject to variation at the discretion of the Executive.”

It follows that the temporary release of a prisoner before the sentence imposed by a court has expired is a privilege accorded to him

at the discretion of the Executive. The liberty which a prisoner enjoys while on temporary release, being a privilege, is clearly not on a

par with the right to liberty enjoyed by an ordinary citizen, although the early termination of the period of release must be carried out

in accordance with the essential principles of constitutional justice as envisaged by this Court in The State (Murphy) –v- Kielt. Where

a prisoner on temporary release is arrested in connection with a garda investigation into an alleged offence (such as the offence of

murder, as in this case) such an investigation is entirely separate and distinct from his status as a convicted prisoner enjoying the

privilege of temporary release. It is a professional police investigation pursued solely for the purpose of ascertaining whether there is

sufficient evidence to charge him with an offence or to warrant a file being sent to the D.P.P. for a decision as to whether he should

be charged with an offence.

However, this does not mean that those who have responsibility for the possible termination of a prisoner’s temporary release when a

condition of that release has been breached must remain passive or do nothing when the fact of such an investigation, particularly in

relation to a very serious offence, comes to their attention. They must be entitled to inquire into any circumstances which give rise

to a concern that a prisoner may have breached a condition of his release. This may include obtaining information or material from the

garda authorities. If, having made such inquiries, they conclude, reasonably and on the basis of objective material, that the prisoner

has breached a condition of his release, then the Prison Governor or the Minister, as the case maybe, may be entitled to terminate

the temporary release subject an inquiry of the nature referred to by Griffin J. in the Kielt case before there is a definitive decision to

terminate the temporary release.

Such a decision is an administrative one for the purpose of withdrawing a discretionary privilege to a convicted prisoner whose

sentence has not expired. Provided the principles and procedures to which I have referred are followed, neither the Minister nor the

Governor are constrained from taking such a decision pending the outcome of any existing garda investigation into an alleged offence

which is a separate and distinct matter.

As I have already indicated I agree with Mr Justice Fennelly that the appeal should be allowed and that an order of certiorari be

substituted quashing the decision of the Minister made on the 23rd December, 1999 to detain the Applicant in custody. It follows that

any further consideration, should it arise, as to whether the Appellants temporary release should be terminated must be considered

having regard to the principles and procedures referred to above.