Doherty v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: Murray, J.,Keane C.J.
• Judgment Date: 14 February 2002
• Neutral Citation: [2002] IESC 8
• Court: Supreme Court
• Docket Number: [S.C. No. 81 of 2001]
• Date: 14 February 2002

DOHERTY v. GOVERNOR OF PORTLAOISE PRISON & ORS

BETWEEN

HENRY DOHERTY

APPLICANT

AND

THE GOVERNOR OF PORTLAOISE PRISON, THE MINISTER FORJUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEYGENERAL

RESPONDENTS

[2002] IESC 8

81/01

THE SUPREME COURT

Synopsis:

JUDICIAL REVIEW

Criminal law

"Good Friday Agreement" - Statutory interpretation - Separation of powers - Multiparty agreement - Imprisonment - Detention - Whether applicant entitled to release under Multi-Party Agreement - Whether applicant "qualifying prisoner" - Criminal Justice (Release of Prisoners) Act, 1998 81/2001 - Supreme Court - 14/2/2002) - [2002] 2 IR 252

Doherty v Governor of Portlaoise Prison

Facts: The applicant initiated judicial review proceedings seeking his release pursuant to the terms of an agreement (multiparty agreement) negotiated between the British and Irish Governments relating to the political situation in Northern Ireland. McKechnie J in the High Court 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 was refused. The applicant appealed against the judgment to the Supreme Court.

Held by the Supreme Court (Keane CJ and Murray J delivering judgments) in dismissing the appeal. The Chief Justice held that the present proceedings concern the proper construction to be given to the Criminal Justice (Release of Prisoners) Act, 1998 (the 1998 Act). At the time that the applicant was sentenced he was no longer associated with any paramilitary organisation and the offences to which he had pleaded guilty had not arisen out of the Northern Ireland situation. The provisions of 1998 Act and in particular section 4 provided an insuperable obstacle to the applicant's case. The Minister for Justice was expressly empowered to specify which prisoners were "qualifying prisoners" and was fully entitled to conclude that the parties who assented to the multiparty agreement had not contemplated the accelerated release of prisoners convicted of crimes not associated with the political situation in Northern Ireland. The appeal would be dismissed. Mr. Justice Murray held when the Minister for Justice was exercising a power of release he was exercising an executive function of a discretionary nature within the ambit of the enactment conferring those powers. The 1998 Act did not confer on him a power or obligation to release prisoners. The Minister decided not to release the applicant and it had not been alleged that his decision was arbitrary, capricious or unjust. The appeal would be disallowed.

Citations:

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 1

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 4

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

NORTHERN IRELAND (EMERGENCY PROVISIONS) ACT 1973 SCHED 4

OFFENCES AGAINST THE STATE ACT 1939 S33

CRIMINAL JUSTICE ACT 1951 S23

PRISONERS (TEMPORARY RELEASE) RULES 1960 SI 167/1960

CRIMINAL JUSTICE ACT 1960 S2

DPP V TIERNAN 1989 ILRM 149

KINAHAN V MINISTER FOR JUSTICE UNREP SUPREME 21/2/2001

MURRAY V IRELAND 1991 ILRM 465

CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 S3(4)

CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 S1

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

1 14th day of February, 2002 by Keane C.J.

Keane C.J.

2 The entering into of what has been generally called "the Good Friday Agreement" was, on any view, a momentous event in the history of these islands. One of its principal objectives - perhaps its paramount objective - was to bring those who had been engaged in campaigns of violence into the democratic political system. Among the components of the complex set ofarrangements which were put in place was the release of prisoners who were serving sentences because they had been engaged in such campaigns, subject to the major proviso that the organisations to which they belonged had abandoned the use of violence as a means of achieving their aims, whether that aim was a united Ireland or the continuance of Northern Ireland as part of the United Kingdom. It need hardly be added that this was simply one component in a series of essentially political arrangements, in many cases reflecting compromises agreed to by the various parties engaged in the process.

3 The present proceedings concern the proper construction to be given to the legislation introduced in this jurisdiction to give effect to what were seen as the obligations of the Irish government in relation to the accelerated release of such prisoners. The Act in question is the Criminal Justice (Release of Prisoners) Act, 1998(hereafter "the 1998 Act".)

4 The facts are not in dispute. Over a period of years stretching from approximately 1970 to 1981, the applicant was convicted of a number of serious offences, including the possession of firearms, robbery and attempted robbery, both in this jurisdiction and in Northern Ireland. He escaped at one stage from Long Kesh Prison in Northern Ireland and successfully resisted his attempted extradition to Northern Ireland. During that period he was directlyand personally involved in the establishment of the Irish Republic and Socialist Party ("the IRSP") and the Irish National Liberation Army ("the INLA"). In 1981, he was convicted by the Special Criminal Court of a bank robbery and sentenced to 6 years imprisonment. During the currency of that sentence, which he served in Portlaoise Prison, he disassociated himself from the IRSP and the INLA and since then has not been involved in any paramilitary organisation. On the 8th March 1995, he pleaded guilty in the Special Criminal Court to an offence of possession of a firearm contrary to the relevant provisions of a number of statutes and was sentenced to 8 years imprisonment as and from the 9th February of that year. On the 20th July 1995, he pleaded guilty in the same court to counts of possession of a firearm giving rise to an inference of an unlawful purpose contrary to a number of statutory provisions. In each case, the sentences of two years imposed were to run concurrently as and from the date of the expiry of the sentence of 8th March 1995. Assuming that he is entitled to the normal remission in respect of these sentences, his scheduled release date is the 8th August 2002.

5 It is, accordingly, not in dispute that, at the time the applicant was sentenced in 1995, he was no longer associated with any paramilitary organisation and that the offences to which he pleaded guilty had not arisen out of the Northern Ireland situation.

6 The 1998 Act provides for the establishment of a body to be known as the "Release of Prisoners Commission" (hereafter "the Commission") whose function is to advise the second named respondent (hereafter "the Minister") when requested so to do with respect of any power of release in relation to those specified by the Minister to be "qualifying prisoners". The applicant, who claimed to be such a "qualifying prisoner", asked the Minister to request the Commission to advise him with respect to his early release, but the Minister declined so to do.

7 The Minister, in correspondence with the applicant's solicitors, gave three grounds for his refusal to specify the applicant as being a "qualifying prisoner", i.e.,

8 (1) that the offences in respect of which the applicant was serving terms of imprisonment were not committed in connection with the situation in Northern Ireland;

9 (2) that he was not when the offence was committed a member of an organisation to which the arrangements established under the Good Friday Agreement applied; and

10 (3) that the relevant offences were not similar offences to "scheduled" offences in Northern Ireland, this being, it wassaid, an essential precondition to a person being specified as a "qualifying prisoner".

11 Those grounds were set out on behalf of the Minister in correspondence which followed the institution of proceedings in the High Court by the applicant in which he was granted leave to apply by way of judicial review for an order of mandamus directing the Minister to respond in writing to the applicant's request to him. The applicant thereupon instituted the present proceeding in which, in addition to claiming relief by way of habeas corpus, he sought

12 (1) an order of certiorari by way of judicial review quashing the decision of the Minister not to consider the applicant as being a qualifying prisoner and refusing to refer the applicant's case to theCommission;

13 (2) declarations by way of judicial review that the applicant was convicted of similar offences to scheduled offences in Northern Ireland, was not affiliated to an organisation which had not established or was not maintaining a complete and unequivocal ceasefire and was a qualifying prisoner withinthe terms of the requisite provisions of the Good Friday Agreement and the 1998 Act.

14 A statement of opposition having been filed on behalf of the respondents, the matter came on for hearing before McKechnie J in the High Court. In a careful and comprehensive judgment, he concluded that the Minister was entitled to rely on the first ground referred to in the correspondence - that the applicant was not serving a term of imprisonment in respect of offences committed in connection with the Northern Ireland situation - in declining to specify the applicant as a "qualifying prisoner" but was not entitled to rely on the other two grounds.

15 In the light of those findings of the learned High Court judge, one would have expected the order of the High Court to have dismissed the application for relief by way of...