Supreme Court dismisses appeal regarding Good Friday Agreement prisoner release eligibility for untried suspects.

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

McCracken J.

186/03

BETWEEN

MICHAEL O’NEILL & JOHN QUINN

APPELLANTS / APPLICANTS

AND

THE GOVERNOR OF CASTLEREA PRISON, THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM AND THE GOVERNMENT OF

IRELAND

RESPONDENTS

JUDGMENT delivered the 29th day of January 2004, by Keane C.J.

Introduction

On the 7th June, 1996, a number of persons took part in an attempted armed robbery in the village of Adare, Co. Limerick. One

member of the Gardaí, Detective Garda Jerry McCabe, was killed on the occasion and his colleague, Detective Garda Ben O’Sullivan,

was injured. The first and second named applicants were subsequently arrested and charged, together with others, with the murder

of Detective Garda McCabe, the malicious wounding of Detective Garda O’Sullivan and possession of firearms for the purpose of

robbery. The trial of the persons concerned proceeded in the Special Criminal Court, but when it had been at hearing for some days,

they were re-arraigned on new charges on the 11th January, 1999 to which they pleaded guilty. The first named applicant pleaded

guilty to the manslaughter of Detective Garda McCabe, to unlawfully and maliciously wounding Detective Garda O’Sullivan and to

having had with him on the occasion firearms with intent to commit robbery. The second named applicant pleaded guilty to the charge

of conspiring with other persons to commit the offence of robbery. The first named applicant was sentenced to eleven years

imprisonment and two concurrent terms of five years imprisonment respectively, which he is at present serving in Castlerea Prison.

The second named applicant was sentenced to six years imprisonment, which he is at also serving in Castlerea Prison.

On the 10th April, 1998, the third named respondent, the Government of Ireland, and the Government of the United Kingdom entered

into the British-Irish Agreement at Belfast. Annex 1 of that agreement sets out an agreement reached in multi-party talks on the

same day, the parties being the two governments and a number of political parties in Northern Ireland, an agreement which is

generally referred to as, and will be referred to hereafter as, “the Good Friday Agreement”. The latter included provisions under which

the two governments agreed to put in place mechanisms to provide for an accelerated programme for the release of prisoners

convicted in Northern Ireland or elsewhere of particular crimes while they were affiliated to paramilitary organisations. It was stated

that these provisions would apply only to prisoners affiliated to organisations which have established and maintained “a complete and

unequivocal ceasefire”.

It is not in dispute that, at the time the offences in respect of which the applicants were convicted were committed and at the time

sentence was imposed upon them, they were affiliated to a paramilitary organisation, the provisional IRA. It is accepted that neither

of the applicants is now affiliated to an organisation which is not maintaining a complete and unequivocal ceasefire.

The Criminal Justice (Release of Prisoners) Act, 1998 (hereafter “the 1998 Act”) was enacted on 13th July, 1998. It provides for the

establishment of a commission to be called the “Release of Prisoners Commission” (hereafter “the Commission”). Section 3(1) provides

that

“The function of the Commission shall be to advise, on being requested to do so under subsection (2) of this section, the

Minister [for Justice, Equality and Law Reform] with respect to the exercise, by reference to the relevant provisions, of any

power of release in relation to prisoners mentioned in that subsection.”

Subsection (2) provides that

“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 request.”

The “relevant provisions” as set out in the Schedule are the provisions of the Good Friday Agreement dealing with the accelerated

release of prisoners. They will be referred to in more detail in a later point in this judgment.

Section 4 of the 1998 Act 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.”

On 25th July, 2000, the solicitor for the applicants wrote to the Minister asking him to confirm that his clients were “qualifying

prisoners” for the purposes of the relevant provisions of the Good Friday Agreement and the 1998 Act. He further sought access to

any material upon which the Minister proposed to rely for the purpose of making a determination in relation to his clients and the

opportunity to make submissions in relation to such material. No reply other than a formal acknowledgment was received to that letter

and the solicitor wrote again on a number of occasions, to which either no reply was given or no more than a formal acknowledgment.

On 16th March, 2001 and again on 25th July, 2001, the solicitor indicated that, in the event of not receiving any substantive

response from the Minister, an application would be made to the High Court in the matter on behalf of the applicants.

On 30th July, 2001, the High Court gave leave to the applicants to apply by way of judicial review for inter alia the following reliefs:

(i) A declaration that the applicants are “qualifying prisoners” for the purposes of the British-Irish Agreement and the 1998 Act;

(ii) A declaration that the applicants are entitled to be released from custody pursuant to those provisions;

(iii) A declaration that the applicants were entitled to see any material on which the Minister proposed to act in considering

their applications for recognition as qualifying persons and for their release, the opportunity to respond to such material and

detailed or any reasons for the Minister’s proposed decisions;

(iv) Declarations that the applicants are entitled to have their applications dealt with within a reasonable time and that this has

not been done;

(v) Declarations that they were entitled to have their applications determined by a person who had not prejudged their

applications and a declaration that the Minister has so prejudged their applications.

In addition, the applicants were given leave to apply for orders of mandamus requiring the Minister to determine that the applicants

are qualifying prisoners for the purposes in question and directing him to take such steps as were necessary in the light of the

declarations sought and, in particular, to order the release of the applicants.

The reference to the Minister having, as was alleged, prejudged the applications by the applicants for recognition as qualifying

prisoners is explained in the affidavit of the solicitor for the applicants grounding the application for judicial review. He referred to a

statement by the Minister on 21st April, 1998 who, speaking in Dáil Éireann, said

“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 recent media speculation. While obviously it would be inappropriate for me to

comment in detail on any case pending before the courts, the government has made 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.”

On 19th February, 1999, the Minister made the following comments, again in Dáil Éireann:

“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 manslaughter

rather than murder convictions does not alter the government’s stance on this issue one iota …

“It is the case that the [1998 Act], which was enacted in the context of the Good Friday Agreement, establishes a Release of

Prisoners Commission but their role is solely 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.”

The grounding affidavit also contains an averment that 57 prisoners in the State and 444 prisoners in Northern Ireland had been

released as of the date of the affidavit under the terms of the Good Friday Agreement and that some of these prisoners had been

convicted of offences similar to the offences in respect of which the applicants were sentenced, i.e. murder of members of the Royal

Ulster Constabulary, other indiscriminate murders and multiple murders and murder of members of An Garda Síochána.

In a further affidavit sworn on 6th March, 2002, the solicitor for the applicants exhibits responses which he received pursuant to an

application by him under the Freedom of Information Act, 1997 to the Department of Justice, Equality and Law Reform for copies of

records relating to the release of the applicants and other prisoners. These included a document headed

“Arrangements for release of prisoners in the south under the terms of the Good Friday Agreement”

which is in question and answer format. In response to a question as to whether prisoners convicted at any time after 10th April,

1998 for offences committed before that date would be covered by the arrangements, the answer was given

“Yes, subject to the case of any person convicted of the murder of Detective Garda Jerry McCabe (see 4 below).”

Question 4 inquired why an exception was being made in the case of any person convicted of the murder of Detective Garda McCabe

and was answered as follows:

“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 against the background of the need to ensure public support for the

terms of the agreement. It is not a question 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.”

The High Court judgment

A statement of opposition having been delivered on behalf of the respondents, in which it was denied that the applicants were

entitled to any of the reliefs claimed, the application for judicial review was heard by Peart J. In a reserved judgment, he concluded

that s. 3(2) of the 1998 Act gave an absolute discretion to the Minister as to when he should request advice from the Commission in

relation to the exercise of any power of release of persons “specified” by the Minister as qualifying prisoners. The learned judge said

he was satisfied that, if the legislature had intended that the Minister’s discretion should be fettered in the manner contended for by

the applicants, it could have said so by setting out the criteria for such specification in the Act and indicating that the Minister should

specify prisoners meeting those criteria. Since the legislature had not done so, he concluded that it had to be presumed that it did

not intend to diminish in any way the wide discretion which the Minister already enjoyed in relation to the release of prisoners under

existing legislation. There was, in the result, no obligation on the Minister to specify particular persons as qualifying prisoners and

thereupon to seek the advice of the Commission.

The trial judge added that, if he had any doubt about the matter and felt the Act was in some way ambiguous or unclear, which he

did not, he would be entitled to have regard to the passage already cited from the speech of the Minister in Dáil Éireann on 21st April,

1998 which, in his view, made it clear that the Oireachtas enacted the 1998 Act in the knowledge that persons convicted of offences

arising out of the killing of Detective Garda McCabe 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 qualified prisoners. He accordingly refused to grant the

relief sought. From that judgment, the applicants have now appealed to this court.

Submissions of the parties

On behalf of the applicants, Dr. Michael Forde S.C. submitted that, since it was not in dispute that other prisoners had been released

under the terms of the Good Friday Agreement and pursuant to the provisions of the 1998 Act who had committed crimes as serious

or even more serious than those in respect of which the applicants had been convicted, including the murder of members of An Garda

Síochána, it followed that, in the absence of any explanation, the guarantee of equality before the law under Article 40.1 of the

Constitution had not been upheld in the case of the applicants. He cited in support of this submission McMahon –v- Leahy [1984] IR

525, Purcell –v- Attorney General [1995] 3 IR 287, Cassidy –v- Minister for Industry and Commerce [1978] IR 297 and An Blascaod

Mór Teo –v- Commissioner of Public Works (No. 3) [2000] 1 IR 6 and the decision of the United Nations Human Rights Committee in

Kavanagh –v- Ireland (14th April, 2001).

Dr. Forde further submitted that the power of the Minister to specify prisoners as “qualifying prisoners” was one which had to be

exercised in conformity with the Constitution and that, in particular, the reasons for exercising the power in a particular manner must

be ones which were bona fide held, factually sustainable and not unreasonable, citing The State (Lynch) –v- Cooney [1982] IR 337

and The State (Daly) –v- Minister for Agriculture [1987] IR 165. Since, in the present case, the Minister had failed to give any

reasons for not exercising his power to specify the applicants as qualified prisoners, the only inference that could be drawn was that

he had no bona fide reasons for failing to specify the applicants as qualified prisoners and in the result his decision was factually

unsustainable and unreasonable.

Dr. Forde further submitted that the Good Friday Agreement, contrary to what was said in Doherty –v- Governor of Portlaoise Prison

was intended to have legal effect and form part of the domestic law of the states concerned, since it was concluded inter alia with

representative of a number of political parties, one of which was registered as such a party in this State, and was couched in

language which suggested that the participants intended it to have legal significance in domestic law. It had also been held by the

House of Lords and the Court of Appeal in Northern Ireland that the implementing legislation in that jurisdiction should be interpreted

in the light of the agreement’s provisions, citing Robinson –v- Secretary of State [2002] NI 390, In re. de Brun’s application [2001] NI

442 and In re. Williamson’s application for Judicial Review [2000] NI 281.

Dr. Forde further submitted that the Minister, in failing to disclose at any stage the materials on which he had acted in declining to

specify the applicants as being qualified prisoners, had not discharged his obligations in responding to an application for judicial review

to make full disclosure of all relevant materials or information in his possession, citing Fordham, Judicial Review Handbook, Third

Edition, 2001 at pp. 31/33. He said that in other cases, such as Doherty –v- Governor of Portlaoise Prison [ 2002] 2 IR 252, the

Minister had recognised that he was under such a duty by filing an affidavit setting out the reasons for the Ministers determination.

The failure of the Minister to file such an affidavit and submit the deponent to cross-examination was, he submitted, of itself a ground

for inferring that the Minister had no good reasons for refusing to specify the applicants as qualifying prisoners and his actions could

accordingly be described as capricious, arbitrary and unreasonable. The Minister was not entitled to rely, as he appeared to have

done, on the earlier statements made to the Dáil, that persons convicted of the murder of Detective Garda McCabe would not benefit

from the release provisions of the Good Friday Agreement, as constituting a legitimate reason, since that was no more than a

statement of the government’s refusal to consider the release of the applicants and did not amount to a reason of any kind.

Moreover, neither of the applicants had been in the event convicted of the murder of Detective Garda McCabe and the second named

applicant was neither charged with, nor convicted of, the unlawful killing of Detective Garda McCabe. He further submitted that the

Minister and the government had prejudged the applicants’ request to be recognised as qualifying prisoners and to be released and

had thereby failed to afford the applicants the fair hearing to which they were entitled in a matter which affected their personal

liberty.

Dr. Forde further submitted that the High Court judge was in error in taking into account the statements of the Minister in the Dáil in

construing the provisions of the 1998 Act, citing Baby O. –v- Minister for Justice, Equality and Law Reform [2002] 2 IR 169.

On behalf of the respondents, Mr. Donal O’Donnell submitted that the submissions of the applicants rested on a misconception that

the functions of the Minister and the government in relation to the release of prisoners constituted a quasi-judicial determination in

respect of some right or entitlement of the applicants conferred by statute. The applicants in this case had been lawfully deprived of

their right to liberty in accordance with law and after they had been afforded a fair trial pursuant to Article 38.1 of the Constitution.

Thereafter, all questions as to pardon, commutation or release became solely a matter for the exercise of executive discretion in

which the judicial branch played no part. He cited in support D.P.P. –v- Tiernan [1989] ILRM 149 and Doherty –v- Governor of

Portlaoise Prison.

Mr. O’Donnell submitted that it followed that any decision by the Minister to specify prisoners as qualifying prisoners for the purpose

of the 1998 Act, or of the Minister or the government to release such specified prisoners, constituted an essentially political judgment

as distinct from a judicial or quasi-judicial determination and one for which the government was primarily responsible and accountable

to the Oireachtas. It was, accordingly, of its nature not reviewable by the judicial arm, unless it violated the terms of the Constitution

itself, as where it was exercised in an arbitrary and capricious manner which could not have been contemplated by the Constitution.

Mr. O’Donnell further submitted that the relevant provisions of the 1998 Act, i.e. s. 3(2), when analysed, made it clear that no

application of any sort to the Minister was contemplated: it was left entirely to the Minister to decide whether to designate a prisoner

and request advice. Since, as was common case, there had been an express and unambiguous statement of government policy that

persons convicted in connection with the killing of Detective Garda McCabe would not obtain the benefit of the Good Friday

Agreement, it followed that the decision by the Minister not to specify the applicants as qualifying prisoners was made in pursuance

of a publicly announced government policy which could not be regarded as arbitrary or capricious. He said that the case made on

behalf of the applicants essentially was that the policy – as distinct from the decision – was arbitrary or capricious, but it was a

matter for the government to decide whether to adopt such a policy and that was a decision for which the government were

responsible in the first place to the Oireachtas and ultimately to the people. He submitted that the government were perfectly

entitled to conclude that public support for the process reflected in the Good Friday Agreement would be undermined if the benefits of

the agreement were available to those who were or might be convicted in connection with this incident.

Mr. O’Donnell further submitted that it could not be contended in this case that the Minister’s refusal to specify the applicants as

qualifying prisoners gave rise to any form of constitutional inequality. The Minister and the government in the exercise of the

discretion vested in them under the legislation, were entitled to act in accordance with a policy which they had already announced

and which would preclude the applicants, because of the particular circumstances arising in their case, from availing of the benefits of

the Good Friday Agreement.

Mr. O’Donnell further submitted that it was not the function of the courts to interpret, apply or seek to enforce the provisions of the

Good Friday Agreement. That was not an agreement which was intended to give rise to legal relations and it had not been

incorporated in the domestic law of the State.

The applicable law

Under Article 13(6) of the Constitution, the right of pardon and the power to commute or remit punishment imposed by any court

exercising criminal jurisdiction are vested in the President but may also be conferred on other authorities. The Oireachtas availed of

that power in enacting s. 23 of the Criminal Justice Act, 1951, which empowers the government to commute or remit in whole or in

part any such punishment and to delegate that power to the Minister.

The 1998 Act confers no power on the Minister to release any prisoners: the definitions contained in s. 1(1) make it clear that the

“power of release” referred to in s. 3(1) of the Act is the power conferred on the government or the Minister by the Criminal Justice

Act, 1951. The effect of the Act is to establish the Commission, to enable the Minister to request the Commission for advice with

respect to the exercise by him of the power of release in relation to prisoners specified by him to be “qualifying prisoners” and to

oblige the Minister or the government, in considering whether to exercise the power in the case of such prisoners, to have regard to

the relevant provisions of the Good Friday Agreement and the advice given to him by the Commission.

The relevant provisions of the Good Friday Agreement are as follows:

“1. Both Governments will put in place mechanisms to provide for an accelerated programme 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 (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 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 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 after release, including assistance directed towards availing of employment

opportunities, re-training and/or re-skilling, and further education.”

As was pointed out by Murray J. in his judgment in Doherty –v- Governor of Portlaoise Prison, these provisions do not form an

operative part of the 1998 Act and are included for reference purposes only, as s. 3(4) makes clear. He went on to say:

“There is no provision of the Act of 1998 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.”

In that case, Murphy J., Geoghegan J. and Fennelly J. expressed their agreement with the judgment of Murray J. and, while I delivered

a separate judgment, I did not dissent in any way from that statement of the law by Murray J. The court was invited in the present

case, however, by counsel for the applicants to overrule the decision in Doherty or, at the least, to treat the observations of Murray

J. as erroneous obiter dicta.

The issue in that case was as to whether the Minister was obliged to treat the applicant as a qualifying prisoner for the purposes of

the 1998 Act and seek the advice of the Commission as to his release, although it was accepted that he was not serving a term of

imprisonment in connection with any offences arising out of the situation in Northern Ireland. The argument on behalf of the applicant

was that, since the relevant provisions treated qualifying prisoners as those who had committed scheduled offences and since he had

been convicted of a scheduled offence, he was entitled to release by virtue of those provisions. Had the judgments in that case

proceeded on the basis that the relevant provisions of the Good Friday Agreement formed an operative part of the 1998 Act, it would

have been necessary to consider whether, giving a literal construction to the provisions in question, the applicant would have been

entitled as of right to be treated as a qualifying prisoner. The court, however, concluded that the relevant provisions had never

become part of the domestic law of this State and, accordingly, that it could not be construed as conferring any such right on the

applicant. I am, accordingly, satisfied that the passage I have cited from the judgment of Murray J. was not, as suggested, merely

obiter.

However, even if it could be so regarded, I have no doubt that it correctly states the law. Article 29.6 of the Constitution provides

that no international agreement is to be part of the domestic law of the State save as may be determined by the Oireachtas. The

British-Irish Agreement itself, accordingly, did not become part of our domestic law, although the 19th Amendment enabled the State

to be bound by it, that being part of the mechanism by which the amendments contemplated to Articles 2 and 3 of the Constitution

were effected by referendum. There is no basis in law whatever, in my view, for the proposition advanced on behalf of the applicant

that the Good Friday Agreement, which was set out in Annex 1 to the British-Irish Agreement, was incorporated at any stage in the

domestic law of the State and both its language and the language of the 1998 Act is wholly irreconcilable with that proposition. The

fact that the parties to the agreement included not merely the governments of Ireland and the United Kingdom but also a political

party registered in this jurisdiction does not effect that conclusion in the slightest degree.

That conclusion would be inescapable even if the Good Friday Agreement was expressed in terms which might lead one to suppose

that it was intended to effect legal relations and create rights and obligations of a justicable nature. So far from that being the case,

the language used, as was demonstrated by Doherty, is in many cases imprecise and aspirational.

Thus, as was pointed out in Doherty, there is no indication in the agreement as to what is meant by “scheduled offences in Northern

Ireland”. Those offences, as was deposed to in an affidavit sworn by a Northern Ireland solicitor, included murder, manslaughter,

arson and riot, and a number of offences in respect of firearms. Such offences in Northern Ireland or in this jurisdiction could be

committed – as was the case in Doherty – in circumstances which had nothing whatever to do with the conditions of political unrest

in Northern Ireland. Yet there is no indication in the wording of the provisions that the accelerated release programme is to be

confined to persons convicted of offences connected with the Northern Ireland situation, although such an intention might be

obliquely inferred from the reference to organisations being on ceasefire in paragraph 2.

In this connection, a study carried out by Mr. Austen Morgan, a member of the English and Northern Ireland bars, under the title “The

Belfast Agreement: A practical legal analysis”, to which we were referred is of interest. He draws attention to the surprising

uncertainty as to what document represents the official text of the Good Friday Agreement, a difficulty which obviously does not

arise in this case having regard to the fact that the provisions to which the Minister is to have regard are set out in the Schedule to

the 1998 Act. He also points out that none of the versions was executed by any of the parties. After a meticulous analysis of various

steps taken by both governments in relation to the implementation of the British-Irish Agreement and the Good Friday Agreement, he

concludes in para 1.35

“The Belfast Agreement comprises the MTA [the multi-party agreement or Good Friday Agreement] and the BIA [the British-

Irish Agreement]: a political agreement (namely the MTA); and a legal agreement (the BIA) – with the latter containing a legal

(in international law) annex.”

The decision of the House of Lords in Robinson –v- Secretary of State for Northern Ireland & Ors and of the Northern Ireland Court of

Appeal in In re. de Brun’s application and In re. Williamson’s application for Judicial Review are not, in my view, of any assistance to

the applicants. Those decisions were concerned with the interpretation of the Northern Ireland Act, 1998 enacted by the parliament

of the United Kingdom under which the Northern Ireland Assembly and other institutions contemplated by the Good Friday Agreement

were established. The Act in its long title made it clear that it had been enacted for the purpose of implementing the Good Friday

Agreement in the United Kingdom and is described by Lord Bingham in his speech in Robinson as “in effect a constitution”. He added

that it should

“consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the

constitutional provisions are intended to embody.”

No such considerations are applicable to the 1998 Act which is the subject of these proceedings. The primary mechanism for ensuring

that the State fulfilled its obligations under the British-Irish Agreement and the Good Friday Agreement, so far as the accelerated

release of prisoners was concerned, was the power of commutation and release already conferred on the executive by the 1951 Act

and, strictly speaking, no legislation was required in order to enable the State to meet those obligations, although the agreement

does indicate that any necessary legislation should be in place by the end of June 1998. It is not surprising that it was thought

prudent to provide by legislation for the establishment of a commission to advise the Minister as to the exercise by him of the relevant

powers of release for the purpose of implementing the Good Friday Agreement, not simply because of the manner in which that

agreement was drafted, but also because there were clearly matters in respect of which the Oireachtas thought it desirable that the

Minister should have informed and independent advice in implementing a programme of so sensitive a nature as one which provided for

the accelerated release of persons convicted in many cases of the most serious crimes. The 1998 Act could not be further removed in

its legal content and nature from the Northern Ireland Act, 1998.

The fact that the Good Friday Agreement, although it recorded undertakings and arrangements acknowledged by the parties to be

binding on them, has never at any stage been incorporated in the domestic law of the State and that the relevant provisions under

consideration in this case conferred no rights on individuals which are capable of enforcement by a court in this jurisdiction has

important consequences. Not merely does the 1998 Act confer no power of release on the government or the Minister or,

correspondingly, vest any right in the applicants to be released: the relevant provisions do not confer any right capable of being

enforced on the applicants to be treated as qualifying prisoners. It goes no further than enabling the Minister to specify them as

“qualifying prisoners” and seek the advice of the Commission in regard to their release.

It would have been open to the Oireachtas to have provided a statutory definition of “qualifying prisoners” and, to that extent, have

qualified the discretionary nature of the power conferred on the Minister to seek advice as to their release from the Commission where

he considered it appropriate. The fact that they did not do so and that it is for the Minister, and the Minister alone, to determine who

should be treated as “qualifying prisoners” for the purpose of obtaining advice from the Commission indicates that the discretion

vested in the Minister to refer any individual case for advice is very broad in its nature. It is, moreover, a discretion which, when

exercised, is a preliminary to the possible exercise by him or the government of the power of release constitutionally vested in them.

The power to release itself, whether exercised on what might be called conventional grounds of a compassionate or humanitarian

nature or for purely political considerations as in the case of releases effected for the purpose of giving effect to the Good Friday

Agreement, is a quintessentially executive function and one which is discharged by them, in the words of Finlay C.J. speaking for this

court in D.P.P. –v- Tiernan [1989] ILRM 149, as

“A matter of policy pursued by the executive at given times and subject to variation at the discretion of the executive.”

However, the description given by the learned High Court judge to the discretion as “absolute” is not altogether satisfactory, insofar

as it might suggest that the courts could never enjoy any function in respect of the exercise of the discretion. Like every other power

conferred on any of the arms of government it can only be exercised in conformity with the Constitution and its correction in cases

where it is not so exercised is exclusively a matter for the judicial arm. As was held by this court in The State (Lynch) –v- Cooney,

any such power must be exercised in good faith and in a manner which cannot be characterised as arbitrary, capricious or irrational.

In arriving at a conclusion as to whether a particular power has been exercised in conformity with the Constitution, it may be

necessary to determine whether it was of such a nature that reasons had to be given for the manner in which it was exercised and,

where such reasons have been given, whether they were objectively capable of sustaining the decision to exercise the power in a

particular manner.

While the decided cases demonstrate that it is not easy to lay down any general principle as to when, in the case of administrative

decisions, reasons must be given, it can be said with confidence that it has never been the law that, in the case of every

administrative decision, the decision maker is required to give reasons. Bodies which are not courts but which exercise functions of a

judicial or quasi-judicial nature determining legal rights and obligations may be required to give reasons for their decisions, because of

the requirements of constitutional and natural justice and in order to ensure that that, in appropriate cases, the judicial review of

such decisions by the High Court is not frustrated, as held by this court in The State (Creedon) –v- Criminal Injuries Compensation

Tribunal [1988] IR 51. But there are also decisions of a purely administrative nature where it has been held that persons whose

interests are adversely affected by the decision may be entitled to reasons for its exercise in a particular manner. Thus, in The State

(Daly) –v- Minister for Agriculture, Barron J. held that a probationer civil servant was entitled to be furnished with the grounds for his

dismissal, since without such reasons being afforded the court could not determine whether there was any material in existence which

was capable of supporting the Minister’s decision. In International Fishing Vessels Ltd. –v- Minister for the Marine [1987] IR 329,

Blaney J., applying the principles laid down in Creedon and Daly, held that the Minister was obliged to give reasons for his refusal to

renew the applicants’ sea fishing boat license.

The authorities both in this court and the High Court accordingly support the proposition that, while it cannot be said that reasons

must be given in the case of every administrative decision, such a duty may arise in circumstances where, unless such reasons are

provided, the legitimate interests of a person may be affected. The authorities demonstrate that a failure to give reasons may

invalidate the decision in cases where the decision maker is not exercising a quasi-judicial function, but is at the least required to

observe fair procedures, as was the case in Daly and International Fishing Vessels Ltd.

Conclusion

The government, as was made clear by the Minister in the statements in the Dáil which have already been quoted, decided as a

matter of policy that the release of prisoners provisions of the Good Friday Agreement would not be operated in the case of persons

convicted in connection with the killing of Detective Garda McCabe. While it is conceded on behalf of the respondents that the

provisions have been operated in the case of other prisoners who have been convicted of equally serious, or even more serious,

crimes, including the murder of Gardaí, it is not suggested that any of the persons released were in the same position as the

applicants who, at the time the British-Irish Agreement and the Good Friday Agreement were entered into, had been charged in

connection with the killing of Detective Garda McCabe but whose trial had yet to take place. If they were to be treated as persons

entitled to the benefit of those provisions, the consequence would have been that their trial would have taken place in circumstances

where, irrespective of any verdict reached, the entire of any sentence imposed on them would have been remitted by the executive.

The Minister made it unambiguously clear that the government did not regard that as acceptable.

An alternative view would have been that, since the offences in question had been committed prior to the entering into of the

agreements, the persons found guilty should have been regarded as entitled to avail of the benefits of the agreements, whether or

not public opinion found it difficult to accept that they should be so treated.

I am satisfied that this was a policy choice which it was entirely within the discretion of the executive to make and could not be

characterised as capricious, arbitrary or irrational. I think that that conclusion is unaffected by the fact that the Minister, although

repeatedly invited by the solicitor for the applicants to do so, failed to give any reasons for his decision not to specify the applicants

as qualifying prisoners until after the proceedings had been instituted and then only because of the operation of the Freedom of

Information Act. Neither the applicants nor their legal advisors could have been misled in any way or acted in a manner detrimental to

their interests because of the failure of the Minister to reply to their correspondence, since it had been made abundantly clear by the

Minister that the government had decided that the benefits of the Good Friday Agreement would not be extended to persons

convicted in connection with the killing of Detective Garda McCabe. I should add that it also seems to me immaterial that the Minister

in his speech of the 21st April, 1998 referred to persons who might be convicted in connection with the “murder” of Detective Garda

McCabe as not coming within the ambit of the agreement. In a subsequent speech of the 19th February, 1999, he made it clear that

the government were not proposing to alter their approach because of the recording of manslaughter rather than murder convictions.

The applicants, during the correspondence which ensued and at the time the present proceedings were instituted on the 30th July,

2001 could not have been under any misapprehension as to the decision which had been taken by the Minister in their case.

The argument on behalf of the applicants that in judicial review proceedings the respondent should disclose to the court all the

materials in its possession which were relevant to the decision sought to be impugned is well-founded, although it would doubtless not

require the respondents to disclose material in respect of which in a discovery process they would be entitled to claim privilege. The

criticism advanced in this case of the respondents for having failed to file any affidavit in support of the statement of opposition,

leaving it to the applicants to obtain the material already referred to through the Freedom of Information Act procedure, is also

justified. However, that cannot affect the outcome of the present appeal, since, as I have already emphasised, the statements of

policy of the government made on more than one occasion must have made it clear to the applicants and their legal advisors the

grounds on which they were not being treated as qualifying prisoners.

As to the argument that the Minister had wrongly prejudged the eligibility of the applicants to be treated as qualifying prisoners in

making the statements in question, that again assumes that neither the government not the Minister were entitled to make a political

judgment that persons in the position in which the applicants ultimately found themselves would not be entitled to avail of the

provisions of the Good Friday Agreement. This was not a case in which the applicants had a right, derived from the 1998 Act or

elsewhere, to apply to the Minister for release on the ground that they were “qualifying prisoners” within the meaning of the relevant

provisions and hence imposing on the Minister an obligation to determine that application in a quasi-judicial manner. In these

circumstances, the announcement of a policy decision by the Minister did not in any way vitiate the decision of the Minister to adhere

to that policy by declining to specify the applicants as qualifying prisoners.

The submission that the failure to specify the applicants as qualifying prisoners should also have been struck down on the ground that

it constituted a form of discrimination between the applicants and persons who had committed crimes of equal or greater gravity and

who had been released under these provisions is not, in my view, well-founded. The applicants as persons who had been charged but

not tried or convicted in respect of the offences in question at the time the Good Friday Agreement was entered into were not in the

same position as persons who had been convicted and sentenced to lengthy terms of imprisonment in respect of the murder of Gardaí

and other offences and who were already serving terms of imprisonment at the time the agreement was concluded. While it was

argued that the Minister’s decision was a violation of the guarantee in Article 40.1 of the Constitution that all citizens should, as

human persons, be held equal before the law, it must be again pointed out that it is not in dispute that the applicants are in a

different category from other persons potentially entitled to the benefit of the agreement to the extent that they had not been tried

and sentenced at the time the agreement was concluded. The resultant difference in treatment cannot be said to amount to the form

of unjust discrimination which has been regarded in other cases as infringing Article 40.1.

In McMahon –v- Leahy, on which particular reliance was placed by the applicants, the applicant was one of five prisoners who

escaped from custody in Northern Ireland and fled to this jurisdiction. When the extradition of four of them was sought to the United

Kingdom, the State did not contest their claim to be exempt from extradition on the ground that the offences which they had

committed were political in nature. When it was sought to extradite the applicant some years later, a similar claim was made on his

behalf but on this occasion contested by the State. It was held by this court that the State, having accepted the claim for

exemption in the earlier proceedings could not adopt a different posture in the case of the applicant and that to permit them so to do

would violate the guarantee of equality under Article 40.1. In this case, the Minister has at every stage indicated that persons in the

position of the applicants would not be afforded the benefit of the agreement and the circumstances are, accordingly, entirely

different from those which arose in McMahon –v- Leahy.

The learned High Court judge was also of the view that, since the Oireachtas must be assumed to have taken into account the

observations of the Minister in the Dáil on the 21st April, 1998, it must also be assumed to have enacted the 1998 Act on the basis

that persons in the position of the applicants would be unable to benefit from its provisions. I am satisfied, however, that, in the light

of the judgments of this court in Crilly –v- T. & J. Farrington Ltd. [2001] 3 IR 251, statements made in the Oireachtas cannot be used

in that manner so as to infer the intention of the Oireachtas in enacting a particular measure.

I would dismiss the appeal and affirm the order of the High Court.