IESC 33 · Supreme Court

THE SUPREME COURT

340/02

Murray J.

McGuinness J.

Fennelly J.

DOWLING

Appellant

v

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondent

JUDGMENT of Fennelly J. delivered on the 22nd day of May, 2003

The Appellant, Glen Dowling, was sentenced to life imprisonment for murder in 1989. In June 1999, the Respondent (“the Minister “)

made a decision granting him temporary release renewable monthly. The present appeal is from the decision of the President of the

High Court to refuse an application for Judicial Review of the decision of the Minister to terminate that release in December 1999.

On 22nd June 1999, Mr Frank McDermott, Prisons Division (Operations) communicated, on behalf of the Minister, communicated to the

Governor of Mountjoy Prison:

“I am directed by the Minister for Justice, Equality and Law Reform to refer to the case of the above named person and to

advise that Mr Dowling may be granted monthly renewable temporary release under the supervision of the Probation and

Welfare Service with effect from Friday 9th July, 1999.

I would ask you to convey our best wishes to Mr Dowling for his future success and remind him of the importance of always

complying with all the conditions of his temporary release”

Temporary release is governed by the Criminal Justice Act, 1960 (“the Act”) and the Prisoners (Temporary Release) Rules, 1960 (S.I.

No. 167 of 1960) (“the Regulation”). Section 2 of the Act empowered the Minister to make rules providing for temporary release of

prisoners, “subject to such conditions (if any) as may be imposed in each particular case...” Any conditions affecting temporary

release must be communicated in writing to the prisoner at the time of his release. The Act contains no express power to revoke or

terminate temporary release, but section 6 deems a person on temporary release “to be unlawfully at large” if he breaks any

conditions and his temporary release is deemed to have expired. He may be arrested without warrant (section 7).

Rule 3 of the Regulation empowers the Governor of any prison, subject to the directions of the Minister, to “release temporarily for a

specified period a person serving a sentence of… imprisonment in that prison.”

Rule 4 provides:

“Directions of the Minister under Rule 3 of these Rules may be given in relation to releases generally or in relation to a

particular release or series of releases or in relation to the release of any category or class of person.”

Rule 5 provides that, in “addition to any other conditions which may be imposed in any particular case, the release of a

person….shall be subject...” to three conditions, obliging the released person, respectively to “keep the peace and be of good

behaviour;” to be “of sober habits;” not to communicate with the media. The prisoner is given, on his release, a printed form

containing any relevant conditions. The form has not been exhibited in the case, but it is common case that it gave effect to the

terms of the letter of 22nd June 1999, requiring the Applicant to report on the 23rd of each month to sign on at Mountjoy prison and

to see a Probation and Welfare Officer. It is agreed that he complied with these conditions up to and including 23rd December 1999.

At 7:30 a.m. on 23rd December, the Applicant was arrested pursuant to section 4 of the Criminal Justice Act, 1984. He was taken to

Blackrock Garda Station, where he was questioned in relation to the suspected murder of one Joseph Vickers at Greystones on 13th

December 1999. He was later released without charge, but was returned to Mountjoy Prison in the following circumstances.

Mr Anthony Flynn, Assistant Principal Officer, attached to the Prisons Division (Operations), of the Department of Justice Equality and

Law Reform, has deposed that, “because of the serious nature of the charges it was felt that the Applicant should not be granted

further temporary release when he returned to sign on.” Accordingly, he was returned to prison, the same evening. He was informed

verbally by the Deputy Governor “regarding the Respondent’s concerns regarding the granting of further temporary release to him.”

He was not released and has remained in prison since that date. Nothing further happened in relation to any suspected involvement

by him in the murder of Joseph Vickers. On 16th March, 2000, a letter was written to him on behalf of the Minister stating that it had

come to the Minister’s attention that he was “the subject of a Garda investigation into a serious crime,” and that “the Minister had

decided not to extend [his] temporary release until the matter [was] fully investigated.”

It is unclear whether the matter of the Applicant’s suspected involvement in the Vickers murder was ever the subject of a file sent to

the Director of Public Prosecutions, but Mr Flynn says that on 11th December 2002 (recte 2001), he was informed by the Garda

Síochána that no charges would be brought against the Applicant.

The Applicant obtained leave to apply for an order of certiorari of the decision of the Minister on 5th November 2001. In a judgment of

14th May 2002, the President of the High Court dismissed the application. In respect of the period from the arrest of the Applicant,

following the questioning at Blackrock Garda Station, the learned President held that the detention was not lawful, as this amounted

to a de facto revocation of the temporary release and the Applicant had been denied his right to be heard, though this unlawful

detention was for a mere matter of hours. In respect of the subsequent withholding of temporary release, the Learned President

considered that this amounted a refusal to renew temporary release. Following the decision of Murphy J in the High Court in Ryan v

Governor of Limerick Prison and Another [1988] I.R. 198, he held that a decision of the Minister as to whether or not to grant

temporary release did “not give rise to any rights in the Applicant.” Murphy J, in the case cited, had held that:

“The temporary release is a privilege or concession to which a person in custody has not a right and indeed it has never been

argued so far as I am aware that he should be heard in relation to any consideration given to the exercise of such a

concession in his favour. That being so, it seems to me that the only right of the applicant or any other person in custody is

to enjoy such temporary release as may be granted to him for whatever period is allowed and subject to such conditions as

are attached to it. The fact that the release may be renewed on a number of occasions and not renewed subsequently does

not confer any additional or new right on the prisoner.”

It was common case, on the hearing of this appeal that two propositions were established, in the case of State (Murphy) v Kielt

[1984] I.R. 459, as applying where it is proposed to terminate or revoke the temporary release of a person at liberty by virtue of such

a decision. Firstly, he or she is entitled to be informed of the reason for the proposed or actual termination of the facility; secondly,

the mere fact of having been questioned - in that case, he had actually been charged - in relation to the commission of another

offence was insufficient to establish breach by the person of the condition of being of good behaviour. Griffin J, at page 473 of his

judgment dealt with that issue as follows:

“In my opinion, the fact that the prosecutor had been charged with an offence is an insufficient reason for the revocation of

his temporary release. 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

person who, in the period intervening between the charge and the dropping of the charges, has lost the liberty to which he

would otherwise have been entitled under the Act and the Rules? When, on the other hand, the governor holds an informal

inquiry, justice will not only be done but will be seen to be done.”

It is, of course, important to distinguish, as did Griffin J, between, on the one hand, reliance on the mere fact of the released prisoner

having been accused of an offence and, on the other, confronting him with allegations constituting the elements of some particular

wrongdoing.

In the present case, it is clear that the Deputy Governor did, in fact, confront the Applicant with the fact that his temporary release

was not being extended and that the reason was that he had been questioned in relation to the suspected murder of Joseph Vickers.

If that could constitute a reason for terminating the temporary release, and, on the authority of State (Murphy) v Kielt, it could not,

then the rule, audi alteram partem, was observed.

However, the argument on the appeal turned essentially on the correct interpretation of the Minister’s decision of 22nd June 1999. Mr

Gerard Hogan, Senior Counsel, on behalf of the Minister emphasised the extensive discretion which several decisions have conceded

to the Minister. He contended that the expression, “renewable monthly” meant that each period of temporary release was for a

period of one month only, which was the “specified period” for the purposes of Rule 3 of the Regulation. Mr Feichín McDonagh, Senior

Counsel, for the Applicant contended that it was necessary to consider the substance and reality of the decision, rather than the

form of words. The expression of “best wishes…for his future...” conveyed by the Minister to the Applicant in the last sentence

demonstrates that the decision was not one limited to a single month. In reality, he was to have full temporary release, provided he

behaved himself. Mr Hogan accepted that to all intents and purposes, on signing on each month, the temporary release was to be

renewed unless something adverse had happened. It also emerged, in the course of the hearing that, while the Minister gives

consideration to the temporary release at its commencement and on any occasion when there is cause for its termination, the

Minister does not make any decision or give any consideration to the matter, where the released prisoner signs on each month and

there is no adverse report.

It is, of course, true that temporary release decisions are entirely within the discretion of the Minister acting in the exercise of

executive clemency on behalf of the State. The present case is concerned only with the interpretation of a decision already made. It

is not suggested that the Minister can be compelled to grant temporary release. If the Applicant’s temporary release came to an end,

by mere effluxion of time on 23rd December, the Minister was not bound to renew it. If it meant more, in particular, if it conveyed

that, in the absence of some breach of condition, the Applicant was entitled to remain on temporary release, since there was no

properly established breach of condition in this case, the Applicant is entitled to have the decision set aside.

In my opinion, the wording of the temporary release decision of 22nd June 1999 does not provide for an individual and discrete

monthly decision. It would not be natural to read it like that. If the release was for one month only, its renewal does not form part of

that decision. However, the decision includes the word, “renewal.” It follows that the renewal of the monthly release was an integral

part of the original decision. The reality is and the particular words convey that the Applicant was going to be indefinitely on

temporary release, provided he was of good behaviour. The Minister was not going to reconsider the matter each month. Thus, the

Applicant’s temporary release was brought to an end simply because he had been questioned in relation to another crime.

In those circumstances, I would allow the appeal and substitute an order of certiorari quashing the decision of the Minister made on

23rd December 1999 to detain the Applicant in custody. I wish to add that I have read and agree with the judgment of Murray J.