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Cite as: [2004] IEHC 356, [2004] 3 IR 296, [2005] 1 ILRM 503

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THE HIGH COURT

[2004] IEHC 356

JUDICIAL REVIEW

[2002 No. 111 JR]

BETWEEN

MARK NASH

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of Mr. Justice Kearns delivered the 5^th day of November, 2004.

The applicant is a British national who is serving two life sentences following conviction in the Central Criminal Court of two offences of murder on the 12^th day of October, 1998.

By application dated the 19^th February, 1999, the applicant submitted a request to the Department of Justice, Equality and Law Reform that he be transferred to the United Kingdom to serve out the remainder of his life sentences in a prison there.

The applicant was born on the 16^th April, 1973. He has a daughter by one Lucy Porter who resides in Leeds in England and with whom his daughter resides. Amongst the reasons cited by the applicant when requesting his transfer is his stated wish to be near family and friends. He stated in his application that since he was sentenced he had had no visits. He also claimed that prison was all the harder for him as he was not a national of this country.

The application was made by the applicant pursuant to the provisions of s. 4 of the Transfer of Sentenced Persons Act, 1995 which provides:-

"(1) A person on whom a sentence has been imposed in the State who wishes to be transferred out of the State to another Convention state in order to serve the sentence or the balance of the sentence so imposed, may apply in writing to the Minister for such a transfer.

(3) … The Minister may grant an application under subsection (1) of this section, if the Minister is satisfied that the following requirements have been fulfilled:

(a) that the sentenced person concerned is, for the purposes of the Convention, regarded by the administering State as a national of that state;

(b) that the order under which the sentence concerned was imposed on the sentenced person is final;

(c) that, at the time of the receipt of the application, the sentenced person had at least 6 months of the sentence concerned to serve or the sentence was of indeterminate length;

(d) that the sentenced person … consents in writing to the transfer;

(e) that the acts or omissions constituting the offence concerned would, if done or made in the administering state, constitute an offence under the law of that state; and

(f) that the administering state agrees to the transfer".

It is accepted on behalf of the respondent that the applicant is a person who meets these criteria for the purpose of making such an application.

Section 10 of the Transfer of Sentenced Persons Act, 1995 as amended by the Transfer of Sentenced Persons (Amendment) Act, 1997 provides:-

"(1) In deciding whether or not to grant an application under section 4(1) of this Act … the Minister shall not, without good reason, discriminate between applicants on the grounds of gender, marital or parental status, racial origin, age, political opinions or religious or other beliefs, health or sexual life, taking into account the operational requirements of the prison service and the welfare of the applicant.

(2) Where the Minister decides not to grant an application under section 4(1) of this Act … the Minister shall notify the applicant or the requesting state, as the case may be, of such decision and such notification shall, where practicable and where the interests of justice do not preclude so doing, include a statement specifying the grounds for such decision …

10B - Pending a decision on an application under section 4(1) of this Act … the Minister shall keep the applicant … informed at regular intervals on the progress of the application".

The Minister gave a preliminary consent to the making of an application thereby setting in train a series of inquiries to be made to various agencies who had, or might have an interest in the application and whose representations would be put before the Minister before any final decision could be reached. The respondent, in exercise of his statutory duties, contacted agencies such as the gardaí, the prison authorities where the applicant was detained, and the Probation and Welfare Service. The Garda Síochána reported to the Minister on the 30^th March, 2001, advising that in their belief there was a possibility that new evidence might come to light which would satisfy the requirements of the Director of Public Prosecutions to direct charges against the applicant herein in relation to two other murders, namely, the double murders of Mary Callanan and Sylvia Shields, which had been referred to in the media as the Grangegorman murders. These murders occurred on the 7^th March, 1997.

In the light of the said report and representations of the gardaí the Minister exercised his discretion under the Act of 1995 (as amended) to refuse the said application for transfer. This decision was made on the 3^rd April, 2001, and was communicated to the applicant herein by way of letter sent to Arbour Hill Hospital on the 9^th April, 2001. At that time, the respondent was of the view that the sensitive nature of the investigation precluded the Minister from informing the applicant of his reasons for such refusal. In his affidavits sworn herein on the 30^th April, 2002, Mr. Anthony Flynn, Assistant Principal Officer attached to the Prisons Policy Section of the Department of Justice, deposes that media speculation, together with reports published in various newspapers at the time, would have had the effect that the applicant herein was alive to the fact that he remained a suspect for the Grangegorman murders.

Thereafter judicial review proceedings were commenced by the applicant seeking the reasons for the Minister's refusal. These were eventually furnished to the applicant by letter dated the 10^th December, 2001, which states:-

"I am instructed that, following consultation with the Gardaí, the Minister is satisfied that he is now no longer precluded from informing their client of the reasons for his refusal to consent to your client's application for a transfer.

I am further instructed to advise that the said application was refused on the basis that your client was and remains a suspect in the murders of Mary Callanan and Sylvia Shields. The Minister is of the view that whilst the Garda investigation is ongoing it would not be appropriate to consent to the transfer. The Minister is also of the view that, given the practical difficulties which may arise as a result of a suspect being outside the jurisdiction and the practical difficulties which may arise should directions be given at a future date that charges be preferred against your client, it would be contrary to the interests of justice to consent to the transfer of your client to another jurisdiction at this time."

At para. 14 of his affidavit, Mr. Flynn deposes:-

"I further say and am advised the practical and legal difficulties which it is envisaged would arise should the applicant be transferred would include, not least, the difficulty in re-interviewing the applicant in the future but particularly the inability to request his extradition from the United Kingdom should charges be preferred. I say and believe and am advised that the applicant could not be returned to this jurisdiction unless with his consent, to face further charges until his sentence had been completed. I say that the applicant is serving a life sentence which in effect will not end even if he should be released in the future on some form of parole. I am further advised that the transfer process pursuant to the Convention does not allow for the return of a transferred person to the sentencing state. As such therefore I say and believe and am advised that should the applicant be returned to the United Kingdom, such decision could have a deleterious effect on the satisfactory conclusion and the investigation into the Grangegorman killings and would effectively thwart any future prosecution of the applicant herein should that be directed by the Director of Public Prosecutions on further evidence that may come to hand in the course of the ongoing investigation".

In the course of the present proceedings an order for discovery was made by the Master of the High Court on the 29^th October, 2002. In that discovery, various documents which had been considered prior to the refusal of the applicant's request were discovered, including a submission to the Minister from Dolores O'Gorman of the Prisons Division, a submission dated the 30^th March, 2001, from Deputy Commissioner Noel Conroy of An Garda Síochána, and a further submission from Mr. Alan King of the Prisons Division dated the 2^nd April, 2001.

From this discovery it is apparent that the Director of Public Prosecutions decided some time in March, 2001, that no proceedings should be instituted against the applicant at that time in relation to the murders of Mary Callanan and Sylvia Shields. In his submission, Deputy Commissioner Conroy stated:-

"I wish to advise that, while the Director of Public Prosecutions has instructed that no proceedings should be instituted against Mark Nash at this time arising from submission of a Garda investigation file on the murders of Mary Callanan and Sylvia Shields, the possibility exists that some new evidence may come to light which would satisfy the DPP's requirements to direct charges.

It is the considered view of the senior Garda officers in charge of the investigation that, while this possibility exists, Mark Nash should not be transferred out of this jurisdiction to a prison in the United Kingdom. I fully support that view and I am also convinced that the transfer of Nash would not be in the public interest".

This recommendation was supported by Mr. King of the Prisons Division.

More recently, by letter dated the 13^th March, 2003, the Chief State Solicitor replied to a notice to admit facts in which it was admitted that the D.P.P. had decided in March, 2001, not to initiate proceedings against the applicant on the basis of the information then available. The letter continued:-

"This situation is being kept under review in the event of any further information coming available".

An inquest into the deaths of Mary Callanan and Sylvia Shields took place and concluded on the 20^th November, 2002, with the finding of unlawful killing in each case. Up to then the inquest had been postponed from time to time so as not to prejudice any garda prosecution. The fact that the inquest then proceeded and reached a conclusion is relied upon by the applicant to assert that the gardaí no longer consider that the hearing of the inquest could prejudice any prosecution in the matter. It is further relied upon to claim that there is no reality, in any assertion that new evidence may come to light in the matter.

On the 7^th November, 2003, the Master of the High Court refused an application for leave to deliver interrogatories which posed the following questions:-

(1) Has new evidence come to light in the investigation of the suspected involvement of Mark Nash in the Grangegorman murders since March 2001?

(2) If yes, has new evidence come to light in the investigation of the Grangegorman murders such as might satisfy the requirements of the Director of Public Prosecutions to direct charges against Mark Nash since March 2001?

The applicant now contends that from documents discovered herein it is clear that the D.P.P. has determined that no proceedings should be instituted against the applicant in respect of the Grangegorman murders. The applicant further asserts that, notwithstanding the decision of the D.P.P. in this regard, the respondent has made a decision to refuse to transfer the applicant on the basis of non specific and vague assertions by the gardaí of the possibility that new evidence may come to light. It is asserted on behalf of the applicant that there is no evidence to suggest that there is any reality to such an assertion and therefore no evidence to support the decision of the respondent to rely on the assertion. The applicant contends that the respondent should not be entitled to rely on this assertion to indefinitely deprive the applicant of his rights under the Act of 1995 (as amended) and that to do so is irrational and unreasonable.

By order of the High Court (Ó Caoimh J.) made on the 4^th day of March, 2002, leave was given to apply by way of judicial review for:-

"(i) an order of certiorari quashing the decision of the respondent to refuse to transfer the applicant to Britain to serve the remainder of his sentence in a British prison pursuant to the provisions of the Transfer of Sentenced Persons Act, 1995 (as amended)

(ii) an order of mandamus directing the respondent to consent to the transfer of the applicant to a British prison pursuant to the provisions of the Transfer of Sentenced Persons Act, 1995 (as amended)

(iii) a declaration by way of an application for judicial review that the decision of the respondent to refuse the transfer the applicant on the grounds that he is under suspicion in respect of the murders of one Mary Callanan and one Sylvia Shields is ultra vires his powers under the provisions of the Transfer of Sentenced Persons Act, 1995 (as amended).

(iv) a declaration by way of an application for judicial review that a decision to refuse to transfer the applicant on the basis of a suspicion of his involvement of the murders of Mary Callanan and Sylvia Shields is unreasonable and/or is without lawful basis.

(v) a declaration by way of an application for judicial review that the applicant is a person who is entitled to be transferred to Britain to serve the remainder of his sentence pursuant to the Transfer of Sentenced Persons Act, 1995 (as amended).

The grounds upon which leave was granted essentially are that the reason for the decision offered by the respondent, namely that the applicant remains under investigation in connection with the murders of Sylvia Shields and Mary Callanan, is irrational and unreasonable having regard to the fact that the Director of Public Prosecutions decided in March, 2001, that he did not intend to bring any prosecution. It is submitted there is no lawful or proper justification for the refusal of the respondent to transfer the applicant to a British prison pursuant to the provisions of the Act of 1995 as amended.

SUBMISSIONS

The Transfer of Sentenced Persons Act, 1995 (as amended) does not in its preamble make specific reference to the European Convention on the Transfer of Sentenced Persons, 1983, although the Act is clearly designed to give effect in Irish law to the Convention in question. As has been accurately pointed out by Mr. Cross, counsel for the respondent, the Convention itself was never enacted as part of domestic law.

However, it is quite clear that the Act was enacted to give effect to the Convention and the scheme of the Act largely follows that of the Convention itself.

It is therefore instructive to look at the preamble to the Convention and the general principles which inform it.

Amongst the recitals are the following:-

"The member states of the Council of Europe and the other states, signatory hereto,

Considering that the aim of the Council of Europe is to achieve a greater unity between its members;

Desirous of further developing international co-operation in the field of criminal law;

Considering that such co-operation should further the ends of justice and the social rehabilitation of sentenced persons;

Considering that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society; and

Considering that this aim can best be achieved by having them transferred to their own countries,

Have agreed".

On behalf of the applicant it was submitted that the Convention takes account of modern trends and crime and penal policy. As the Explanatory Memorandum to the Convention makes clear, penal policy has come to lay greater emphasis upon the social rehabilitation of offenders and thus it is of considerable importance that the sanction imposed on the offender is enforced in his home country rather than in the state where the offence was committed and the judgment rendered. The Explanatory Memorandum goes on to state that this policy is also rooted in humanitarian considerations: difficulties in communication, alienation from local culture and customs, and the absence of contacts with relatives may all be seen as having detrimental effects on the foreign prisoner. The repatriation of sentenced persons is therefore promoted as being in the best interests of the prisoners as well as of the governments concerned.

It was therefore submitted that, in approaching his functions under the Act of 1995 (as amended) the Minister should do so in a purposeful manner in compliance with the spirit of the Convention and that his discretion to refuse should only be exercised for grave and compelling reasons.

It was submitted there was no relevant material before the respondent which would support his decision to refuse to transfer and, given the presumption of innocence, it follows that the applicant should not be deprived of an opportunity to avail of the machinery created under the Transfer of Sentenced Persons Acts 1995 – 1997 on the mere assertion by the gardaí, that there is a possibility that new evidence may come to light; which would cause the D.P.P. to change his mind about bringing a prosecution.

The present case, it was submitted, either failed the standard test for judicial intervention by way of judicial review expressed in Associated Provincial Picturehouse Ltd. v. Wednesbury Corporation (1948) 1 KB 223 and by Finlay C.J. in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, or, alternatively failed the test of 'anxious scrutiny' appropriate to those cases where issues of fundamental human rights arise. The applicant through his counsel relied in particular upon a number of English cases in support of the latter proposition, suggesting that the appropriate standard for judicial review had there been held to be that of 'anxious scrutiny' (R v. Ministry of Defence, ex parte Smith [1996] QB 517, R (Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840, R. v. Lord Saville of Newdigate and Ors [2000] 1 WLR 1855).

In R. v. Minister for Defence ex parte Smith the Court of Appeal in England had held at p. 517:-

"that where an administrative decision was made in the context of human rights, the court would require proportionately greater justification before being satisfied that the decision was within the range of responses open to a reasonable decision-maker according to the seriousness of the interference with those rights; that in applying the test of irrationality which was sufficiently flexible to cover all situations, the court would show greater caution where the nature of the decision was esoteric, policy laden or security based".

Reliance was also placed on the following passage from the judgment of the Court of Appeal in R. v. Lord Saville of Newdigate and Ors where the Court of Appeal found at p. 1185 that:-

"In the absence of compelling justification it was unreasonable for a decision-maker to reach a decision which contravened or might contravene human rights, and where a fundamental right was engaged the options available to the reasonable decision-maker were curtailed; that the court would anxiously scrutinise the strength of the countervailing considerations and the degree of the interference with the human right involved, and the more substantial that interference the more the court would require by way of justification before being satisfied that the decision in question was reasonable".

Further reliance was placed on the judgments of Fennelly J. and McGuinness J. in the Supreme Court's decision in A.O. & D.L. v. Minister for Justice [2003] 1 I.R. where, in the course of considering the appropriate standard for judicial review in such cases, it was submitted that both members of the court had indicated a preference for an 'anxious scrutiny' test or at least some approach more flexible and generous than that laid down in the Wednesbury, Keegan and O'Keeffe decisions where issues of fundamental human rights were at stake.

Counsel also made some en passant reference to the decision of the Supreme Court in a public procurement case, namely, SIAC Construction Limited v. Mayo County Council [2002] 3 IR 148. Reference was made to the case, not for the purpose of arguing that a 'manifest error' test was appropriate, but rather that in the particular case the court had to exercise its function of judicial review so as to make the principles of the public procurement directives effective. The exercise by the respondent of his discretion under the Act of 1995 (as amended) had to be exercised, it was submitted, in a way that honoured the spirit, both of the Act and of the Convention, which underpinned it.

In response, Mr. Cross SC, counsel for the respondent pointed out that in SIAC the court was concerned only with the decision made by the respondent in December, 2001. It was clear that the Minister was vested with a wide discretion in relation to the making of a decision to consent to an application for transfer under the Act of 1995 (as amended). This was not fettered other than as set out in s. 10, nor was there any provision in the Act for an appeal from any such decision. It was always open to an applicant who has been refused, to make a further application for transfer should circumstances have changed, in which event such an application would be considered afresh. The applicant herein had made only one application, namely, that of February, 1999.

In reaching his decision, the Minister had apprised himself of the views of, inter alia, the Prison Service and An Garda Síochána. He was also aware of the decision of the Director of Public Prosecutions not to institute proceedings against the applicant at the particular time and was entitled, in the exercise of his discretion, to weigh all such relevant information before reaching the conclusion which he did.

Mr. Cross submitted that a long line of case law, commencing with the Wednesbury decision, which had been adopted and reinterpreted through the Irish decisions of Keegan v. Stardust Victims Compensation Tribunal [1986] I.R. 642, O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 and O'Reilly v. O'Sullivan (Unreported, High Court Laffoy J., 25^th July, 1996) emphasised that the court can and should intervene to quash an administrative decision, only if it is fundamentally at variance with reason and common sense and is so unreasonable that no reasonable authority could ever have come to it. Mr. Cross further submitted that the case of SIAC Construction Limited v. Mayo County Council [2002] 3 IR 148 should not be seen as meaning anything more than that Ireland, as a member state of the EU, must, in terms of the review of public procurement decisions which are regulated by European Union law, be consistent with the rest of the members states in the test to be applied. That that was the sole extent of the judgment as manifest from the following passage in the judgment of Fennelly J. (at p. 176):-

"Therefore, I am satisfied that the courts, while recognising that awarding authorities have a wide margin of discretion, must recognise that this cannot be unlimited. The courts must exercise their function of judicial review so as to make the principles of the public procurement directives effective. In the case of clearly established error, they must exercise their powers. The application of these principles may not, in practice, lead to any real difference in result between the judicial review of purely national decisions and of those which require the application of community law principles".

Mr. Cross submitted that the respondent was entitled in law to act upon the recommendations of both the Prison Division and Deputy Commissioner Conroy and the mere possibility that the court might reach a different conclusion on the basis of the reports considered by the Minister was irrelevant. As was stated by Hamilton J. in Duff v. Minister for Agriculture [1997] 2 I.R. 22 at p. 65

"the function of the court is to reach a conclusion as to whether it was open to the Minister on the evidence before him and having regard to the matters which he was bound to take into consideration to make the decision which he did".

The Transfer of Sentenced Persons Act, 1995, as amended, gave the Minister an unfettered discretion in relation to applications by prisoners to transfer to another state. The applicant did not have a right pursuant to statute to be transferred. At its highest, Mr. Cross submitted, the legislation afforded him an opportunity to make a request for a transfer, which said request might or might not be acceded to by the sentencing or administering state.

DECISION

It may perhaps be appropriate at this point to briefly consider the present state of Irish jurisprudence on the appropriate test to be applied before any court can intervene by way of judicial review to quash administrative decisions.

In this context one thing is abundantly clear, and that is that the Supreme Court in AO & DL v. Minister for Justice [2003] 1 I.R. 1 did not abandon existing threshold standards for judicial intervention as set out in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, Keegan v. Stardust Tribunal [1986] I.R. 642 and O'Reilly v. O'Sullivan (Unreported, High Court, Laffoy J., 25^th July, 1996).

Only the dissenting judgments of McGuinness J. and Fennelly J. set out certain reservations about that standard which might be taken as maintaining an open mind towards an 'anxious scrutiny' test or 'careful scrutiny' test where issues of fundamental human rights are concerned.

Fennelly J. stated as follows at p. 202 of his judgment:-

"It seems to be assumed that the normal standard for judicial review of such decisions should be that usually applied to administrative decisions in Associated Provincial Picturehouses Limited v. Wednesbury Corporation [1948] 1 KB 223 as more fully developed in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 and O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. That is that the decision, in order to be quashed, must be defective as to attract the description variously expressed by Henchy J. in the former case and summarised by Finlay C.J. at p. 70 of his judgment in the latter:-

' "(1) It is fundamentally at variance with reason and common sense

(2) It is indefensible for being in the teeth of plain reason and common sense

(3) Because the court is satisfied that the decision-maker has breached his obligation whereby he 'must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision'".

It appears to have been the view of Denham J., with whom Hamilton CJ. agreed in Laurentiu v. Minister for Justice [1999] 4 IR 26 (see p. 62 of her judgment) that review of deportation orders is to be conducted in accordance with these principles. Counsel for the respondent, when asked about this matter at the hearing argued that it was not relevant to the present case. The matter was certainly not argued on these appeals and to that extent, any further remarks about it must be obiter. It seems to me that where, as in this case, constitutional rights are at stake, such a standard of judicial scrutiny must necessarily fall well short of what is likely to be required for their protection. This appears to have led to some modification of the test in other jurisdictions. In R. (Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840, the decision of the English Court of Appeal, upon which the Minister has relied, Laws L.J. and Lord Phillips M.R. both applied a significantly modified test as expanded in the case of Associated Provincial Picturehouses Limited v. Wednesbury Corporation [1948] 1 KB 223, one based on "anxious scrutiny" to a case involving interference with fundamental rights. In a case such as the present, the routine application of the unmodified test as expanded in the case of Associated Provincial Picturehouses Limited v. Wednesbury Corporation [1948] 1 KB 223 makes decisions of the Minister virtually immune from review."

McGuinness J. had the following to say at p. 126 of her judgment:-

"The matter of the standard for judicial review of administrative decisions was not argued in this case and was specifically stated by counsel for the respondent not to be relevant to the case. I would, however, concur with Fennelly J. in believing that where constitutional rights are at stake as in this case, the standard of judicial scrutiny as set out in particular in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 may fall short of what is likely to be required for their protection.

I made reference to this question and to the approach taken to it by judges in the United Kingdom in my judgment in Z. v. Minister for Justice [2002] 2 ILRM 215 where I said at p. 236:-

'the outcome of judicial review proceedings in many cases and in many contexts is of crucial importance to applicants. The court is committed to submitting the decision-making process in all cases to careful scrutiny … I have certain difficulty in the interpretation of the phrases used by the English courts in the cases to which we have been referred – 'anxious scrutiny' – 'heightened scrutiny', and similar phrases. From a humane point of view it is clear that any court will most carefully consider a case where basic human rights are in question. But from the point of view of the law, how does one define the difference between, say, 'scrutiny', 'careful scrutiny', 'heightened scrutiny', or 'anxious scrutiny'? Can it mean that in a case where the decision-making process is subject to 'anxious scrutiny' the standard of unreasonableness/irrationality is to be lowered? Surely not. Yet it is otherwise difficult to elucidate the legal significance of the phrase. It must be said that this aspect of the case was not fully argued before this court so that my remarks in this context are merely a preliminary impression. Further consideration must await a fuller argument in a future case.'

In this context I bear in mind the dictum of Finlay CJ in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 at p.72:-

'I am satisfied that in order for an applicant for judicial review to satisfy a court that the decision-making authority has acted irrationally in the sense which I have outlined above so that the court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the court that the decision-making authority had before it no relevant material which would support its decision.'

If this standard is to be applied, especially when it is combined with a generalised reason, such as respect for the integrity of the immigration and asylum system, it makes, as pointed out by Fennelly J., the decision in cases such as the present virtually immune from review. On this account it would, in my view, be of assistance to have this matter fully argued in a future case."

Similarly, Geoghegan J. at p. 166 reserved 'until a suitable case' any consideration of whether in a judicial review of a Ministerial decision, the courts are confined to an O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 function.

While counsel for the applicant, in the course of an able submission, made reference to the judgment of the Supreme Court in SIAC Construction Limited v. County Council of Mayo [2002] 3 IR 148, it was accepted by both sides that in that case the court was considering the test for judicial review in the context of public procurement directives and the standards of review in the community courts. It really has nothing to say to the instant case when no similar contextual backdrop exists.

Indeed, the court is quite satisfied that no issue of fundamental human rights arises in the instant case. The applicant is serving two life sentences for two different murders in respect of which he was convicted after a trial in the Central Criminal Court and in respect of which no appeal was brought. It has not been suggested that any issue of fundamental rights or constitutional rights would arise in any situation where the applicant was required to serve out his sentence in one location rather than another in this jurisdiction.

It seems to me that the Transfer of Sentenced Persons Act, 1995 (as amended) is properly to be seen as creating a statutory right in favour of a person in the applicant's position to make an application for transfer to another jurisdiction and to expect that the Minister, in considering that application, will do so reasonably and within the spirit and intent of the Act. Once the Minister does that and exercises his discretion in a manner which is not unreasonable in the sense of being irrational, or without material to sustain same, then that decision should not be set aside except for compelling reasons. No such reasons have been demonstrated in the instant case.

Nor does the court see any reason for extending the purview of the judicial review remedy by applying an 'anxious scrutiny' test in a case of this nature. This was the 'fall-back' submission advanced on behalf of the applicant. To go down that road would be a dangerous exercise in judicial adventurism which would set aside decades of case law in this area. To adopt such a course might quickly bring in its wake an endless stream of judicial review applications in cases where human rights might to any degree be said to be affected by some Ministerial or administrative decision.

Accordingly, and applying the traditional principles to which I have referred, the net question appears to this court to be whether or not, in the exercise of his discretion, the Minister was entitled to rely on the assertion of the Assistant Commissioner of An Garda Síochána to make the decision which he did make in December 1991.

I have not in the course of this judgment gone into any detail about the background facts, concentrating instead on the procedural and administrative steps taken since the applicant first sought his transfer. However, some of the documentation relied upon by the applicant himself suggests that some other person, since deceased, confessed to the Grangegorman murders in circumstances where An Garda Síochána were later compelled to accept that the confession could not possibly be correct and that the particular individual did not, and could not have, perpetrated the crimes in question. This in turn was apparently seen as invalidating admissions or statements made by the applicant herein, although the exact nature of those admissions is unclear from the documentation placed before the court and quite clearly the court cannot speculate as to the extent of the evidence, if any, available to An Garda Síochána other than to note that the material exhibited by the applicant does suggest that An Garda Síochána had grounds for continuing to treat the applicant as a suspect and for submitting the views which they held to the Minister when their views were sought in 2001. Since the Minister, in a situation of this nature, must afford a considerable margin of appreciation to An Garda Síochána when investigating criminal matters he was, in the court's view, quite entitled at that time to rely upon the views of the Assistant Commissioner which were to the effect that the transfer should not take place at that point in time because of the possibility of some further evidence coming to light which would cause the D.P.P. to reverse his decision not to prosecute the applicant in respect of the Grangegorman murders.

At the point in time when the Minister made his decision, I do not think it could be said that he did anything that was unreasonable or irrational for the reasons stated. However, a position adopted on a particular issue may at one point in time be reasonable, but at a later point may by passage of time become unreasonable, or even irrational.

Thus, in the instant case, could the Minister, year after year, simply accept an assertion, without more, from a member of An Garda Síochána, however senior in rank, that a person be not transferred purely on the basis that a possibility continued to exist that evidence might come to light which could give rise to the possibility of a prosecution? I don't believe such an approach would be reasonable. It seems to me that the rationality and reasonableness of a decision on a request of this nature must be seen in a temporal context and on the facts ands circumstances then obtaining. The court feels able to decide this case by holding that the decision made by the Minister in December 2001 was a reasonable exercise of his discretion at that time.

However, as has been pointed out, this does not preclude the applicant from making a further application, which might conceivably yield up a different result having regard to the interval of time which has now elapsed.

Having decided the case on this basis in favour of the respondent I should also add that, having regard to the particular facts and circumstances of this case, the delay in moving the judicial review application does not strike the court as being of any significance. In any event, this point was not seriously pressed or argued by Mr. Cross in the course of his submissions.