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

[Judgments delivered by Murray J. and Fennelly J.; McGuinness J. agreed with both]

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.

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.