State (Murphy) v Governor of St. Patrick's Institution

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 21 May 1982
• Neutral Citation: 1983 WJSC-HC 1676
• Court: High Court
• Date: 21 May 1982

1983 WJSC-HC 1676

THE HIGH COURT

State (Murphy) v. Governor of St. Patrick's

THE STATE (AT THE PROSECUTION OF MICHAEL MURPHY)

and

THE GOVERNOR OF SAINT PATRICK'S INSTITUTION

1 Judgment of Mr. Justice Barrondelivered the 21st day of May 1982.

2 The prosecutor in this case is a young man aged 18 years. On the 13th January, 1981 he received a sentence of twelve months detention in Saint Patrick's Institution. In May of that year, he was considered suitable for temporary release under the provisions of the Criminal Justice Act, 1960. He was granted full temporary release from the 19th May, 1981 to the expiration of his sentence on the 22nd October, 1981. Prior to his release, the prosecutor signed a notice as required by Rule 6 of the Prisoners (Temporary Release) Rules 1960. The notice was asfollows:

"Full temporary release from Saint Patrick's Institution. This notice is to inform you that you Michael Murphy are being released from Saint Patrick's Institution for the period from 10.30 a.m. 19th May, 1981 to expiration ofsentence 22nd October, 1981 for the purpose of re-entering into the community under intensive supervision and that your release is subject to the following conditions, with which you are obliged to comply during the period of your release:-"

1. That you shall keep the peace and be of good behaviour during the period of your release.

2. That you shall be of sober habits.

3. That you will not convey any message, written or verbal, into or out of Saint Patrick's Institution.

4. That you shall report to the welfare officer as directed byher.

5. That you shall comply with the conditions as laid down by the probation and welfare officer.

3 Note: the currency of a sentence is suspended during a period of temporary release. Failure to return on or before the expiration of the period of temporary release or breach of any of the conditions attached to temporary release is a breach of the discipline of Saint Patrick's Institution and is an offence punishable, on conviction

4 by imprisonment for a term not exceeding six months." This form was also signed on behalf of the officer for the time being in charge of Saint Patrick's Institution.

5 On the 15th June, 1981, while on such temporary release, the prosecutor was arrested under Section 30 of the Offences Against the State Act, 1939 and charged with two others in the District Court in Dublin with attempted murder and possession of a fire-arm with intent to endanger life. Each of the accused was remanded in custody to Saint Patrick's Institution. On admission the prosecutor was treated as a prisoner on remand and required to wear appropriate clothing. On the following day two officers at the Institution gave him clothing to wear appropriate to a person who had been sentenced. He was told that since the Gardai had brought him back this was the clothing which he would have to wear.

6 On the 19th June, 1981, the respondent informed the prosecutor that he was being kept in custody because of the seriousness of the offences alleged against him and with which he had been charged. It is not suggested that the respondent was in possession of any facts or evidencerelatingto the alleged offences nor is it suggested that any such matters were communicated to the prosecutor by the respondent. The respondent in his affidavit stated that he believed that it would be inappropriate for him to determine the guilt of the prosecutor or otherwise on the charges and accordingly that he could not carry out any formal investigation of the matter. For that reason, he stated that he did not carry out any such investigation. The prosecutor told the respondent that he had done nothing wrong and that he had been charged with offences which he did not commit.

7 Application was subsequently made for bail by all three accused. This application was heard by Mr. Justice McMahon on the 26th June, 1981, who granted bail to the prosecutor's co-accused, but refused it to the prosecutor. It is reasonable to accept that the reason for such refusal was that the prosecutor was then, by reason of the revocation of his temporary release, serving a sentence of detention. A subsequent application for bail was made to Mr. Justice D'Arcy on the 9th October, 1981, and refused. It is again reasonable to accept that such refusal was for the same reason as theearlier refusal. On the 23rd October, 1981, a further application for bail was made before Mr. Justice Costello. On this occasion, the application was granted; presumably because the custodial sentence received on the 13th January, 1981 had then been completed.

8 Meanwhile on the 23rd September, 1981, the prosecutor had obtained a conditional order of certiorari in respect of the order of the respondent revoking the grant of temporary release to the prosecutor. This order was granted upon the ground that the decision of the respondent to terminate the temporary release was reached otherwise than in accordance with natural justice. The respondent has shown cause why the conditional order should not be made absolute, and the prosecutor has now applied that such order should be made absolute notwithstanding the cause shown.

9 The argument advanced on behalf of the prosecutor at the hearing of this application was that the order of the respondent which had the effect of depriving the prosecutor of the liberty to which he was entitled by reason of the temporary release order was made contrary to law andcontraryto the principles of natural justice. The respondent has argued that, since the conditional order was obtained on the latter ground only, this ground alone should be considered by the Court. Since the reasons put forward by the prosecutor can all be fairly considered under this one ground, I intend to deal with the case on this basis. I do not consider that any injustice will be done to either party by adopting thisapproach.

10 The argument put forward on behalf of the prosecutor is essentially that the respondent did not hear the prosecutor before revoking his temporary release. The prosecutor contends that having regard to the effect on him of such revocation there was an obligation on the respondent to hold a hearing of the allegation against him before revoking such temporary release. In support of this submission, Counsel relies upon two American authorities - Morrissey v. Brewer, 408 U.S. 471 and Gagnorv. Scarpelli, 411 U.S. 778 - which show that in that jurisdiction a hearing is required before the revocation of a parole. The prosecutor further contends that the reason given for making the revocation order was onefor which there was no basis in that the temporary release could have been revoked only if there had been a breach of one of the conditions to which such release was subject and that being charged with a criminal offence was not a breach of any of the conditions.

11 In reply to this, the respondent contends that the rules of natural justice were observed and were complied with. While the respondent did not specifically concede that he was required to hold a hearing, he was prepared to argue the case on the basis that such a hearing was required. He argues that there was a hearing and that the principles of natural justice have not been broken; that the prosecutor was given the reason why his temporary release was revoked and...