O'Hare v Min for Justice and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Aindrias Ó Caoimh |
| Judgment Date | 10 August 2001 |
| Neutral Citation | [2001] IEHC 121 |
| Date | 10 August 2001 |
| Court | High Court |
[2001] IEHC 121
THE HIGH COURT
BETWEEN
AND
Citations:
NORTHERN IRELAND "GOOD FRIDAY AGREEMENT" (10.4.1998) PARA 25
CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 S3(4)
NORTHERN IRELAND (SENTENCES) ACT 1998
OFFENCES AGAINST THE STATE ACT 1939
CRIMINAL JUSTICE ACTS 1951–1960
NORTHERN IRELAND "GOOD FRIDAY AGREEMENT" (10.4.1998) PARA 3
CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 S3(2)
DOHERTY V GOVERNOR PORTLAOISE PRISON UNREP MCKECHNIE 24.11.2000
CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 S2(2)
CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 S3(3)
CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 S6(3)
NORTHERN IRELAND "GOOD FRIDAY AGREEMENT" (10.4.1998) PARA 2
CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 S4
CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998 S3
Synopsis
PRISONS
Detention
Release - Belfast agreement - Early release sought - Mandamus -Whether applicant entitled to release - Whether applicant "qualifying prisoner" under Belfast Agreement - Whether minister in breach of obligations - Criminal Justice (Release of Prisoners) Act, 1998 (2000/513JR - O Caoimh J - 10/8/2001)
O'Hare v Minister for Justice, Equality and Law Reform
The applicant sought an order of mandamus against the respondents directing his release under the terms of the Belfast Agreement (the agreement) and pursuant to the provisions of the Criminal Justice (Release of Prisoners) Act, 1998, which implemented the agreement. The applicant claimed that under the terms of the agreement he was entitled to release. In particular the applicant made reference to the two year period contained in the agreement which provided for the release of all prisoners once this period had elapsed. Mr. Justice Ó Caoimh was satisfied that the two year period only operated where 'the circumstances allowed it', as stated in the agreement, and thus there was no automatic entitlement to release. There had however been a failure on the part of the Minister for Justice to keep the applicant's solicitors informed of the progress of the matter. The relief sought would be refused.
Mr. Justice Aindrias Ó Caoimh delivered the 10th day of August, 2001.
By Order of the High Court (Mr. Justice Butler) dated the 25th September, 2000 the Applicant was given leave by this Court to seek the following reliefs by way of an application for Judicial Review -
1. An Order of Mandamus directing the Minister for Justice Equality & Law Reform to forthwith release the Applicant from Portlaoise Prison under the terms of the Agreement reached in the Multi-Party Talks (The Belfast Agreement) dated the 10th April 1998.
2. Further and/or in the alternative an Order of Mandamus directing the Minister for Justice Equality & Law Reform to make a decision on the Applicant's application for release under the terms of the Agreement reached in the Multi-Party Talks (The Belfast Agreement) dated the 10th April 1998.
3. A Declaration that the Applicant is entitled to be released under the terms of the Belfast Agreement from in or around the end of July 2000.
4. A Declaration that the Minister for Justice Equality & Law Reform is obliged by law to consider the Applicant's application for release under the terms of the Belfast Agreement within a reasonable period from the date of application.
5. A Declaration that the Applicant has been unlawfully detained from in or about the end of July 2000 given the fact that all qualifying prisoners should be released within two years of the date of the coming into effect of the Prisoner Release Scheme.
The grounds upon which this relief was granted are those set out at paragraph E in the Applicant's statement and are as follows.
1. On or about April 10, 1998 the participants in the multi-party negotiations reached agreement (The Belfast Agreement) whereby both the Irish and British Governments committed themselves to inter alia putting in place mechanisms to provide for the release of 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") and stated that such arrangements would protect the rights of individual prisoners under national and International law.
2. By virtue of the Criminal Justice (Release of Prisoners) Act, 1998(The 1998 Act') its British equivalent being the Northern Ireland (Sentences) Act, 1998, the Irish Government legally implemented the commitments contained in the Belfast Agreement.
3. By virtue of Section 3(4) of the 1998 Act the relevant provisions referred to in the 1998 Act mean those provisions of the Belfast Agreement under the heading "Prisoners" in that Agreement and which are scheduled to the 1998 Act
4. The relevant provisions referred to above and contained in both the Belfast Agreement and the 1998 Act are as follows:-
(i) 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 or, similar offences (referred to hereafter as "qualifying prisoners"). Any such arrangements will protect the rights of individual prisoners under national and international law.
(ii) Prisoners affiliated to organisations which have not established or are not maintaining a complete and unequivocal cease-fire will not benefit from the arrangements. The situation in this regard will be kept under review.
(iii) 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, any qualifying prisoners who remain in custody two years after commencement of the scheme would be release at that point.
(iv) The Government will seek to enact the appropriate legislation to give effect to these arrangements by the end of June 1998.
(v) The Governments continue to recognise the importance of measures to facilitate the reintergration of prisoners into the community by providing support both prior to and after release, including assistance thereafter towards availing of employment opportunities, re-training and/or re-skilling and further education.
5. The gravamen of Criminal Justice (Release of Prisoners) Act, 1998(and Northern Ireland (Sentences) Act, 1998) is to enable the phased release of persons imprisoned anywhere in the two jurisdictions arising from convictions for crimes which were politically motivated. The clear intention of the said legislation and the Belfast Agreement is that all qualifying prisoners will be released within two years of the coming into effect of the Scheme, i.e.; - on or about the end of July 2000.
6. The Applicant is currently a member of the Irish National Liberation Army and the Officer Commanding on the Irish National Liberation Army Wing in Portlaoise Prison. The Irish National Liberation Army is on a recognised cease-fire in support of the Belfast Agreement and a number of its members have been released pursuant to the said Agreement, including the Applicant's three co-accused.
7. Pursuant to the Criminal Justice (Release of Prisoners) Act, 1998the Release of Prisoners Commission was established as an independent body to advise the Minister for Justice, Equality and Law Reform whenever the Minister considered it appropriate and requested such advise in relation to the exercise of any power relating to the release of prisoners specified by the Minister to be qualifying prisoners under the terms of the Belfast Agreement.
8. The 1998 Act therefore envisages a two stage procedure whereby the Minster for Justice, Equality and Law Reform specifies a person to be a qualifying prisoner and then if he so wishes, requests advice from the Release of Prisoners Commission.
9. The 1998 Act therefore, does not provide any actual new power of release which already exist pursuant to inter alia the Offences Against the State Act, 1939and the Criminal Justice Acts, 1951– 1960(as amended). The Release of Prisoners Commission, while independent, performs an advisory role only.
10. The Minister for Justice, Equality and Law Reform is obliged, however, by virtue of the Criminal Justice (Release of Prisoners Act) 1998to have regard to the relevant provisions of the Belfast Agreement and to the Schedule annexed to the 1998 Act in the making of decisions on the release of each prisoner. This requirement also applies to the Release of Prisoners Commission in the giving of advice to the said Minister when such advice is requested.
11. These conditions include the requirement that prisoners affiliated to organisations which had not established or are not maintaining a complete and unequivocal cease-fire will not benefit from the arrangements, that both Governments are obliged to complete a review process within the fixed timeframe and set prospective release dates for all qualifying prisoners. The review process is to provide for the advance of the release dates of qualifying prisoners while allowing account to be taken of the seriousness of the offences of which the person was convicted and the need to protect the community; the intention was that qualifying prisoners who remain in custody two years after commencement of the Scheme would be released at that point.
12...
To continue reading
Request your trial
-
Rodger's (Robert James Shaw) Application
...in the judicial review application of Desmond O’Hare v The Minister for Justice Equality and Law Reform Ireland and the Attorney General [2001] IEHC 121. In that case the applicant, who was still detained, contended that he was entitled to be released at the conclusion of the two year perio......