Doherty v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: Hon. Mr Justice McKechnie
• Judgment Date: 24 November 2000
• Neutral Citation: [2000] IEHC 107
• Court: High Court
• Date: 24 November 2000

[2000] IEHC 107

THE HIGH COURT

No. 454JR/2000

DOHERTY v. GOVERNOR OF PORTLAOISE PRISON & ORS

JUDICIAL REVIEW

BETWEEN

HENRY DOHERTY

APPLICANT

AND

THE GOVERNOR OF PORTLAOISE PRISON THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

MULTI-PARTY AGREEMENT 10.4.1998

CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 S1

FIREARMS ACT 1925 S15(a)

FIREARMS ACT 1964

FIREARMS ACT 1971

CRIMINAL LAW (JURISDICTION) ACT 1976 S8

CRIMINAL JUSTICE ACT 1984 S14

FIREARMS ACT 1925 S27

CRIMINAL JUSTICE ACT 1984 S14(4)

FIREARMS AND OFFENSIVE WEAPONS ACT 1990 S4

CONSTITUTION ART 40.4.2

RSC O84

CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 SCHED PARA 1

CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 PREAMBLE

OFFENCES AGAINST THE STATE ACT 1939

CRIMINAL JUSTICE ACT 1960

PRISONERS (TEMPORARY) RELEASE RULES 1960 SI 167/1960

CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 S3(2)

CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 S2

CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 S3

CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 S4

CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 SCHED PARA 2

CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 SCHED PARA 3

CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 SCHED PARA 5

CONSTITUTION ART 29.5.6

NINETHEENTH AMENDMENT TO THE CONSTITUTION ACT 1998

BRITISH IRISH AGREEMENT ACT 1999

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE V BORD PLEANALA 1993 IR 39

MCGRATH V MCDERMOTT 1988 IR 258

RAHILL V BRADY 1971 IR 69

AG, PEOPLE V MCGLYNN 1967 IR 232

RAFFERTY V CROWLEY 1984 ILRM 350

NESTOR V MURPHY 1979 IR 326

LUKE V INLAND REVENUE COMMISSIONERS 1963 AC 557

O'DOMHNAILL V MERRICK 1984 IR 151

CW SHIPPING LTD V LIMERICK HARBOUR COMMISSIONERS 1989 ILRM 416

EMERGENCY POWER, RE 1977 IR 159

DPP, PEOPLE V FARRELL 1978 IR 13

RYAN V GOV OF LIMERICK PRISON 1988 IR 198

MURPHY, STATE V KIELT 1984 IR 458

NORTHERN IRELAND (EMERGENCY) PROVISIONS ACT 1973

INSPECTOR OF TAXES V KIERNAN 1981 IR 117

Synopsis:

Prisons

Prisons; early release of prisoners; applicant seeks certain reliefs including a declaration that he is a "qualifying prisoner" within the terms of either Multi-Party Agreement concluded on 10th April, 2000, or provisions of Criminal Justice (Release of Prisoners) Act, 1998; applicant had sought early release under terms of both instruments; State had refused him same; whether requirement that applicant be a member of a subversive organisation to which arrangements in Agreement applied unlawful and ultra vires powers of Minister; whether relevant offences of which applicant had been convicted are similar offences to scheduled offences in Northern Ireland; whether in accordance with proper construction and interpretation of 1998 Act, Minister had been acting intra vires in insisting on a connection between offence and Northern Ireland terrorist campaign.

Held: Relief refused.

Doherty v. Governor of Portlaoise Prison - High Court: McKechnie J. - 24/11/2000

The applicant initiated judicial review proceedings seeking his release pursuant to the terms of an agreement negotiated between the British and Irish Governments. McKechnie J held that the Minister in question was acting intra vires in insisting upon a connection between similar offences and the Northern Ireland troubles. Accordingly the relief sought would be refused.

1 Hon. Mr Justice McKechnie delivered on the 24th day of November 2000

2 1. In Belfast on the 10th day of April 1998 there was done two Agreements, one made between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland and another between these Sovereign Governments and the other participants in the multi-party talks concluded thereat. The Agreement firstly mentioned is sometimes referred to as the British and Irish Agreement with the second agreement being known, and in this Judgment being referred to, as "the Multi-Party Agreement".

3 2. The Agreement last mentioned, which constitutes Annex 1 of the British and Irish Agreement, opens with a Declaration of Support under pinning the entirety of the Accord so reached, and then goes on to deal with matters of grave National and International importance. These include Constitutional Issues, the establishment of Democratic Institutions in Northern Ireland, relations between Northern Ireland, Ireland and the United Kingdom and other crucially important subjects such as Human Rights, Decommissioning, Security, Policing and Justice. In addition commencing at page 30 of the Document there is a Section dealing with Prisoners. In paragraph 1 thereof, inter alia, both Governments agreed to put in place mechanisms to provide for an accelerated programme for the release of certain prisoners in certain circumstances. Pursuant to this obligation the Government of Ireland enacted the Criminal Justice (Release of Prisoners) Act, 1998. In essence, in the above entitled Judicial Review proceedings, the Applicant seeks a Declaration that he is a "qualifying prisoner", either within the Multi-Party Agreement or else within the provisions of the Act itself. Deserving of such recognition, it is then pleaded on his behalf, that the Minister Respondent should invoke certain procedures specified in the 1998 Act which, if so invoked, would in Mr Doherty's hope and expectation, lead to his early release from Portlaoise Prison where presently he is lawfully detained. This Judgment therefore is concerned with the Multi-Party Agreement and with the 1998 Act.

4 3. In or about 1970 the Applicant, Henry Doherty, became involved in and with the Republican movement. In the years which followed he was convicted of several offences involving amongst others, possession of firearms, robbery and attempted robbery; these in both the jurisdiction of Northern Ireland and in the Republic. He escaped on at least two occasions from Long Kesh and successfully resisted one attempted extradition to Northern Ireland. In 1974 he was directly and personally involved in the establishment of the Irish Republican Socialist Party and in the I.N.L.A.. In 1981 having been convicted by the Special Criminal Court of bank robbery, he was sentenced to six years imprisonment which he served in Portlaoise. During the currency of that sentence he disassociated himself from the I.N.L.A. and from the I.R.S.P. and since then has not been associated with any paramilitary organisation. All terms of imprisonment, including those next mentioned, were and are being served by him as a non-aligned prisoner which status equally represents his continuing interest and participation in Irish political affairs. That this is so has not been disputed by the Respondents and in fact is very much relied upon by them in support of one central issue in this case.

5 4. On the 8th of March 1995, on a plea, Mr Doherty was convicted by the Special Criminal Court of possession of a firearm contrary to section 15(a) of the Firearms Act, 1925 as amended and extended by the Firearms Acts, 1964and 1971, by the Criminal Law (Jurisdiction) Act, 1976 and by section 14 of the Criminal Justice Act, 1984. He was sentenced to eight years imprisonment as and from the 9th of February of that year. On the 20th of July, again before the same Court and again on a plea, he was convicted on counts 3,4 and 5 and was sentenced to imprisonment for a period of two years on each of these counts, the said sentences to run concurrently as and from the date of expiry of the sentence imposed on the 8th of March, 1995. These counts inter alia referred to possession of a firearm giving rise to an inference of unlawful purpose contrary to section 27 of the Firearms Act, 1925 as substituted by Section 8 of the Criminal Law (Jurisdiction) Act, 1976 and, as amended both by section 14(4) of the Criminal Justice Act, 1984 and by section 4 of the Firearms and Offensive Weapons Act, 1990. With normal remission his scheduled release date is the 8th of August 2002.

6 5. Being aware of the political, constitutional and legal developments in both Northern Ireland and in the Republic, Mr Doherty sought to persuade the Respondent Minister of his entitlement to early release as a qualifying prisoner under, as previously said, either the Multi-Party Agreement or the 1998 Act. To this end he was interviewed on the 20th of September 1999 by the head of Prisons Operations. This person, Mr Ruairí Gogan, informed the Applicant, firstly that having been tried before the Special Criminal Court did not in itself guarantee "qualification", secondly that he, and therefore the Respondent Minister accepted that the Applicant was serving his sentence as a non-aligned prisoner, thirdly that both his and the Minister's view was that the offences for which he was then and is now serving prison sentences were committed whilst non-aligned and that therefore he was not a member "of any qualifying group or subversive organisation". In such circumstances the application of Mr Doherty was unsuccessful. Before concluding the interview however, Mr Gogan undertook to have the Applicant's case reconsidered.

7 6. Between the date of that interview and the 10th of January 2000, Mr Doherty met Mr John Kenny and Mr Gogarty both from the Department of Justice and he also entered into correspondence inter alia with the Office of the Taoiseach. Despite such efforts however, he had not, by the date of the Order next mentioned, received any decision on his request for a reconsideration. Accordingly on the 10th of January 2000 he sought and was granted by Geoghegan J, leave from the High Court to apply by way of an application for Judicial Review for an Order of Mandamus directing the Minister " (i) to respond in writing to the Applicant's application that he be entitled to the same release conditions/considerations as the rest of the...