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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kelleher v Irish Prison Service & Ors (Approved) [2025] IEHC 253 (09 May 2025)
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Cite as: [2025] IEHC 253

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AN ARD-CHÚIRT

 

THE HIGH COURT

[2025] IEHC 253

[Record No. 2024/1120JR]

BETWEEN

GERARD KELLEHER

Applicant

AND

 

THE IRISH PRISON SERVICE,

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

 

Respondents

JUDGMENT of Mr Justice Liam Kennedy delivered 9 May 2025.

1.                  These proceedings concern the eligibility of certain prisoners for consideration for temporary release under a statutory scheme that, in certain circumstances, allows prisoners to be offered the opportunity of a phased and supervised reintegration into society subject to conditions and controls. The Respondents concluded - wrongly in the Applicant's view - that, he was serving a minimum mandatory period of imprisonment as specified in the Misuse of Drugs Act 1977–1984 ("the Act"), with the result that he was not eligible for consideration for such temporary release as he had been convicted of certain specified offences under that Act  (s. 15A offences) and the effect of s. 27 of the Act was that prisoners serving a minimum mandatory sentence for s. 15A offences do not qualify for temporary release until the expiration of the minimum mandatory period of their sentence. Although these proceedings are well advanced, and independently of them, the Applicant has been released in the meantime by virtue of his having qualified for enhanced remission under an entirely different scheme. The Respondents accordingly seek to stay the proceedings on the basis that they are moot. The Applicant accepts that they are now moot but says that the application should p roceed for the benefit of other prisoners who are or will be in the same situation as he was.

Background

2.                  A high-level description of the context will suffice. The facts are largely common ground. When these proceedings were instituted, the applicant was a serving prisoner, having been sentenced on 8 December 2016 to multiple terms of imprisonment, including 12 years for two serious s.15A offences. The temporary release regime is governed by s. 27 of the Act and is in the following terms:

"(3A) Every person guilty of an offence under section 15A or 15B of this Act shall be liable, on conviction on indictment—

(a) to imprisonment for life or such shorter term as the court may determine, subject to subsections (3C) and (3D) of this section [...] and

(b) at the court's discretion, to a fine of such amount as the court considers appropriate.

...

(3C) Where a person (other than a person under the age of 18 years) is convicted of an offence under section 15A or 15B of this Act, the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person.

 

(3D) (a) The purpose of this subsection is to provide that in view of the harm caused to society by drug trafficking, a court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under section 15A or 15B of this Act, shall specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of the offence, it would be unjust in all the circumstances to do so.

(b) Subsection (3C) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than 10 years imprisonment unjust in all the circumstances and for that purpose the court may, subject to this subsection, have regard to any matters it considers appropriate, including...

(3G) The power conferred by section 23 of the Criminal Justice Act 1951 to commute or remit a punishment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised before the expiry of the minimum term specified by the court under subsection (3C) [...] of this section less any reduction of that term under subsection (3H) of this section.

(3H) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence imposed under subsection (3A) of this section and the minimum term specified by the court under subsection (3C) of this section shall be reduced by the amount of any remission so earned by the person.

(3I) Any powers conferred by rules made under section 2 of the Criminal Justice Act 1960 to release temporarily a person serving a sentence of imprisonment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised during the term for which the commutation or remission of his or her punishment is prohibited by subsection (3G) of this section unless for a grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by such reason."

3.                  Accordingly, the effect of the provision is that a recipient of a mandatory minimum sentence for a s.15A or s.15B offence cannot be granted temporary release until the expiration of the mandatory minimum period. In this case, the sentencing Court did not expressly impose a minimum sentence (nor apparently is it normal practice for the Court to specifically impose a minimum sentence for such offences), but the Respondents say that the Applicant's 12 year sentence for the two s.15A offences constitutes a minimum term for s.27 purposes and that he was therefore ineligible for consideration for temporary release until he had served at least 12 years imprisonment. He says:

a.       the Respondents' interpretation is wrong because s.27(2C) envisages that, when sentencing for s.15A offences, the court will specify a minimum period to be served in addition to imposing a sentence. It follows that s.27 only applies if the judge specifies a minimum sentence. That did not happen here. Accordingly, the s.27(3I) prohibition, preventing a person from being considered during the minimum period, has no application since no minimum sentence is stipulated. The interpretation issue is summarised by Walsh's Criminal Procedure (2016, 2nd ed.)  at para. [24.36]:

"The outline of the presumptive/mandatory minimum provisions above has proceeded on the basis that the sentence passed by the court and the 'minimum term to be served' are synonymous. This approach has been taken because that is how the provision has been interpreted by the courts. It is worth noting, however, that they are capable of a quite different interpretation, namely that the courts consider specifying a minimum term that must be served in what is otherwise a longer sentence. It is submitted that the latter accords more closely with a literal interpretation of the provisions and is actually a better fit in some contexts, while in other contexts either interpretation is awkward."

b.      in the alternative, the Respondents' interpretation of s.27 would render the provision repugnant to the Constitution.

c.       Accordingly, the Respondents wrongly fettered their discretion by deeming him ineligible even for consideration.

There are weighty arguments on both side (as reflected by the grant of leave). This judgment does not address those substantive issues but rather whether the proceedings should continue notwithstanding their mootness.

4.                  Although the Applicant's pleadings claimed that he would have been a good candidate for temporary release, the proceedings concerned his eligibility for consideration. He did not assert any entitlement in respect of the outcome of that process. He accepted that the decision was discretionary and might have been gone against him. The issue became moot from his perspective because, although these proceedings progressed with expedition, he was released in the meantime under a different statutory scheme. However, the same eligibility issue will inevitability arise for other individuals sentenced to imprisonment for 10 years or more for s.15A offences (There was no evidence as to exactly how many people may be affected, but nor any dispute that, although the numbers might be small, others are currently serving s.15A sentences and that the issue will continue to arise in respect of eligibility for temporary release (including individuals convicted of s.27 offences in future).

The Legal Principles

5.                  It was agreed that the applicable principles appear from the decisions in Lofinmakin v Minister for Justice [2013] 2 IR 274 ("Lofinmakin"), Okunade v Minister for Justice & Ors [2012] 3 IR 152 ("Okunade"), Odum v Minister for Justice & Equality [2023] IESC 3 ("Odum"), O'Brien v The Personal Injuries Assessment Board (No. 2) [2007] 1 IR 328 ("O'Brien"), Irwin v Deasy & Anor. [2010] IESC 35 ("Irwin"), Salaja (a minor) & Anor. v Minister for Justice, Equality and Law Reform [2011] IEHC 51 ("Salaja"), Dellway Investments Ltd v NAMA [2011] 4 IR 1, McDonagh v Governor of Mountjoy Prison [2015] IECA 71 ("McDonagh"). Lofinmakin concerned a challenge to a deportation order which was revoked while the appeal to the Supreme Court was pending. The respondents said that the appeal was moot as the third appellant was no longer at risk of deportation under the  original order and the appeal would be "a purely academic exercise giving rise to a purely advisory opinion". Such a hearing should be avoided as any decision could not affect the applicant's residency status and could be of no "practical use or benefit to them".

6.                  McKechnie J reviewed the authorities, including Murphy v Roche & Ors. [1987] IR 106 ("Murphy") and Goold v Collins & Ors. [2004] IESC 38 ("Goold"), noting that in Goold, Hardiman J quoted Professor Tribe's book, American Constitutional Law, 3rd Ed., (New York, 2000) ("Tribe") which stated, at paras. 3 to 11 that:

"A case is moot, ... if the passage of time has caused it completely to lose 'its character as a present, live controversy of the kind that must exist if the Court is to avoid advisory opinions on abstract propositions of law' ... Thus, the Supreme Court has recognised that mootness can be viewed as 'the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness)'."

7.                  McKechnie J noted that the mootness rule is not absolute, citing O'Brien, Irwin and Salaja and Borowski v Canada (Attorney General) & Ors. [1989] 1 SCR. 342 ("Borowski"). The appellants argued that the Court should exercise its discretion to hear an appeal even if it was moot, on the grounds of judicial economy and efficiency. In Borowski, having been satisfied that the matter was moot, the Court declined to exercise its discretion to hear the matter on the basis that, inter alia, it did not require judicial intervention, being an executive matter.  The trial judge in Lofinmakin had certified questions of law for appeal as being of exceptional public importance and it was in the public interest to have such questions determined, removing legal uncertainty. The only other option to address the confusion as to the substantive issue (which was affecting the asylum list) was to await the emergence of another case raising the same issue but even if such a case did arise, there was no certainty that the same arguments would be advanced or that the trial judge would certify an appeal to the Supreme Court, as in this case.

8.                  McKechnie J summarised the legal principles:

"59. The rule by which a court will decline to hear and determine an issue on the grounds of mootness is firmly based on the deep rooted policy of not giving advisory opinions, or opinions which are purely abstract or hypothetical. This policy stems from and is directly related to the system of law within which our courts discharge their essential function of administering justice. Apart from any special jurisdiction conferred by statute, by the Constitution, or resulting from our membership of the European Union, the system in question is fully adversarial. Consequently, there must exist some issue(s), embedded within a factual or evidential framework, the determination of which is/are necessary so as to resolve the conflict or dispute which necessitated the proceedings in the first instance. It has therefore always been recognised that without such a concrete foundation, the courts typically will decline to intervene.

In addition to this basic justification for the rule, there are a number of other reasons which support its existence, including what has been described as "judicial economy", which can also be termed "judicial efficiency" or "judicial effectiveness". In a time of scarce and declining resources on the one hand and of an ever increasing stream of litigation, much of which is lengthy and complex on the other, the courts must consciously scrutinise and carefully calculate how best they can fulfil their functions. Consequently, where necessity of resolution is not required, the courts quite correctly will be most reluctant to get involved.

There is another related but broader consideration which must also be kept in mind: it is that the discharge of the judicial function is best performed where the reference point is focussed on resolving defined issues in a concrete legal setting. In that way there is much less danger of inadvertently overstepping the reach of the judicial role as envisaged in Article 34 of the Constitution. In this regard I respectfully agree with the views of Hogan J. in Salaja who said at para. 7 that:

"... the provision by judges of such advisory opinions would not, at least generally speaking, serve the proper functioning of the administration of justice, since if unchecked or not kept within clearly defined limits, it would involve the judicial branch giving gratuitous advice on legal issues to the Oireachtas and the Government, a function which was never conferred on it by the Constitution."

In essence therefore, this particular rule and its underlying utility are designed, like a number of other related judicial practices, to serve justice and to drive the administration of it".

9.                  McKechnie J observed that:

"Therefore as can be seen, where the action has lost its utility by reference to the issues and the parties, the case is classified as moot.

The use by Tribe of the phrase "live controversy" is to be understood as indicating that such controversy must be found within a set of tangible as opposed to imagined facts: it must have a definite setting and not one based on conjecture. ... Ó Dálaigh C.J. (dissenting) in McDonald v Bord na gCon & Anor. [1964] I.R. 350 pointed to the desirability of decision-making being conducted in a real, as opposed to an abstract context. In a passage at p. 356 of the report, which applies no less to the doctrine of mootness than it does to constitutional practice, the learned Chief Justice said:

'Moreover, while the constitutional validity of a statue has to be determined by reference to the statute's general application, I must doubt whether it would be proper to pronounce a statute repugnant to the Constitution except in a case where the specific facts of that case themselves exemplified the repugnancy complained of.'"

10.              McKechnie J gave examples of mootness:

[a] the repeal of the impugned provision or the expiry of the entire statute leaving no issue;

[b] the completion of the process which was sought to be prohibited (Caldwell);

[c] the resolution of the underlying dispute by agreement or other circumstance (Irwin);

[d] the attainment of what was sought to be achieved, by means other than those in dispute (P.V (a minor) v The Courts Service & Ors. [2009] 4 IR 264);

[e] the dissolution of a legislative assembly, where an injunction was sought to prevent a member from exercising his/her functions as such;

[f] the unconditional release, with no residual effects, of a party who had challenged a decision peculiar to him/her, such as his/her right to liberty or right to parole;

[g] the death of a party who was contesting the validity of a statutory provision in circumstances individual to him/her (unreferenced);

[h] the reaching of a specified age after which the relief sought could not be obtained (e.g. adoption)."

11.              McKechnie J stipulated that the Court could proceed even if claims were moot:

"66. ... even therefore when an issue is moot, the courts have always maintained a discretion to hear and determine the point. One of the earliest cases touching on this issue is Condon & Ors. v Minister for Labour & Anor. [1981] IR 62 where despite the expiry of the statute, the constitutionality of which was in issue, the defendants' assertion of mootness was rejected. Where there was a live possibility that similar legislation could be re-enacted, and where it was far from clear that rights had not been interfered with, the existing challenge could not be said to be moot (O'Higgins C.J. at p. 70 and Kenny J. at pp. 74 and 75). ... There are therefore two steps in the evaluative process. The first is to decide whether the point is moot: if it is not, that is an end to the inquiry: if it is, and if either or both parties still wish to proceed, the second question centres on the courts' discretion. The basis for the exercise of this discretion has not been particularised to any great extent and perhaps it should not be, for to do so may have the unintended effect of being overly prescriptive or of foreclosing on the limits of a discretion, with rigid or inflexible consequences.

67.At the level of principle however it seems to me that, where the overriding interests of justice require a decision on the moot, the same should be given".

12.              McKechnie J approved the Canadian Supreme Court's judgment in Borowski in which Sopinka J explained that:

"(i) even where an issue may be redundant for the purposes of the existing proceedings, nonetheless the same may still retain its character as a matter of live controversy, if a decision would be beneficial to either party in related proceedings...

(ii) that expense may still be justifiably incurred in determining an important and recurring point, otherwise moot, which by the nature of the proceedings is likely to evade review if the doctrine is strictly applied: he instanced the validity of interlocutory injunctions given as part of industrial disputes which in his experience were almost always resolved by appeal date; and

(iii) that the courts, should always be mindful of their true role as the adjudicative branch of government".

13.              McKechnie J noted that the Irish Courts had heard moot cases, such as O'Brien and Irwin. In O'Brien the Supreme Court allowed an appeal to proceed in respect of whether the Personal Injuries Assessment Board was obliged to deal directly with a solicitor nominated by a client (rather than dealing directly with the client). Even though the issue had become moot, it directly affected the body's "exercise of one of its core statutory functions".

14.              In O'Brien, Murray CJ ultimately concluded that a decision ultimately retained its character as a live controversy and that the appeal hearing would resolve that issue. The Court was also influenced by the fact that the  High Court Order defined the respondent's statutory obligations to the applicant "not only as regard his past claim but as regards any future claim which he might have for personal injuries" and that the Applicant had "obtained a ruling determining how the respondent should exercise public statutory powers vis-à-vis him which is binding as between the parties not only as regards the circumstances of the particular case but as regards any future event".

15.              At para. 73, McKechnie J noted that the plaintiff in O'Brien, had no continuing interest in the proceedings but PIAB retained an interest in the issue and therefore its appeal should be determined

16.              In Irwin the Revenue Commissioners were a judgment creditor with judgment mortgages over a debtor's interest in land co-owned by his estranged wife. The Revenue's "well charging" proceedings failed because the High Court concluded that the only remedy where the security touched upon the interest of only one co-owner, was an order for partition or a sale in lieu but that the judgment creditor had no standing to seek partition, and the Court had no jurisdiction to order a sale in lieu of partition. Although the debtor's indebtedness was compromised whilst the Revenue's appeal was pending, the Supreme Court allowed the appeal to proceed, as in O'Brien. The Revenue retained a material interest in having the issue ruled upon at appeal level. McKechnie noted that, while reaffirming the general practice of declining to hear hypothetical or academic appeals, Murray CJ also stated at para. 77 that:

"In exceptional circumstances where one or both parties has a material interest in a decision on a point of law of exceptional public importance, the Court may in the interests of the due and proper administration of justice determine such a question."

McKechnie noted Murray CJ's conclusion that, having regard to the exceptional circumstances and the nature of the case, the Court should allow the appeal to proceed.

17.              Emphasising that these decisions did not detract from the general reluctance to resolve moot issues, McKechnie J commented that both O'Brien and Irwin impacted on the performance of statutory functions in definite, specific and constraining ways and both bodies were anxious to have the issues determined. McKechnie J also observed that Dunne v Governor of Cloverhill Prison [2009] IESC 43 ("Dunne No.1") - one of several examples of the Supreme Court continuing with a moot appeal - could be understood in several ways, and that the issue:

"was central to the exercise by the District Court of its jurisdiction to extend time for the service of a book of evidence - a jurisdiction which as a matter of notoriety is exercised with the utmost frequency - it may well be that, noting the widespread and grave consequences which would result from the wrongful exercise of such a power, the Court decided, as a matter of discretion"

18.              At para. 82 McKechnie J summarised the principles:

"(i) A case... can be described as moot when a decision thereon can have no practical impact or effect on the resolution of some live controversy between the parties ...

(ii) ... where a legal dispute has ceased to exist, or where the issue has materially lost its character as a lis, or where the essential foundation of the action has disappeared, there will no longer be in existence any discord or conflict capable of being justiciably determined.

(iii) The rationale ... stems from our prevailing system of law which requires an adversarial framework, involving real and definite issues in which the parties retain a legal interest in their outcome. There are other underlying reasons as well, including the issue of resources and the position of the court in the constitutional model.

(iv) It follows ... that the court will not - save pursuant to some special jurisdiction - offer purely advisory opinions or opinions based on hypothetical or abstract questions.

(v) That rule is not absolute, with the court retaining a discretion to hear and determine a point, even if otherwise moot. The process therefore has a two-step analysis, with the second step involving the exercise of a discretion in deciding whether or not to intervene, even where the primary finding should be one of mootness.

(vi) In conducting this exercise, the court will be mindful that in the first instance it is involved in potentially disapplying the general practice of supporting the rule, and therefore should only do so reluctantly, even where there is an important point of law involved. It will be guided in this regard by both the rationale for the rule and by the overriding requirements of justice.

(vii) Matters of a more particular nature which will influence this decision include:-

a.      the continuing existence of any aspect of an adversarial relationship, which if found to exist may be sufficient, depending on its significance, for the case to retain its essential characteristic of a legal dispute;

b.      the form of the proceedings, the nature of the dispute, the importance of the point and frequency of its occurrence and the particular jurisdiction invoked;

c.       the type of relief claimed and the discretionary nature (if any) of its granting, for example certiorari;

d.      the opportunity for further review of the issue(s) in actual cases;

e.       the character or status of the parties to the litigation and in particular whether such be public or private: if the former, or if exercising powers typically of the former, how and in what way any decision might impact on their functions or responsibilities;

f.        the potential benefit and utility of such decision and the application and scope of its remit, in both public and private law;

g.      the impact on judicial policy and on the future direction of such policy;

h.      the general importance to justice and the administration of justice of any such decision, including its value to legal certainty as measured against the social cost of the status quo;

i.        the resource costs involved in determining such issue, as judged against the likely return on that expenditure if applied elsewhere; and

j.        the overall appropriateness of a court decision given its role in the legal and, specifically, in the constitutional framework.

The matters above mentioned as being material to the exercise of the courts' discretion are indicative only and are not intended in any way to be exhaustive and may well have to be adjusted to reflect the particular circumstances of any given situation. However, once all appropriate matters are established and their relevance identified, the conclusion of the resulting analysis in all cases should reflect the basic purpose of the rule and should be concordant with its underlying rationale.

84.In summary it can be said that in light of the considerations stated above, the courts do not in principle try issues which are moot, notwithstanding that these may have been an important question of law in issue between the parties and it is only where there are a range of exceptional circumstances that the courts will exercise their discretion to do so".

19.              In Lofinmakin, the claim was clearly moot. There was no live aspect. There were no indications that the Minister would again seek to deport the individual, but in any event any challenge to a new decision would be in the context of the then prevailing circumstances, not those grounding the proceedings before the Court. The Court considered that in that scenario:

"the legal context and the factual context are likely to be so different from the present, that a decision on the instant case would have virtually no effect on any future case, which of course in itself remains uncertain and unpredictable, and indeed may never even materialise".

20.              Accordingly, the Court was not inclined to hear the appeal, observing that "strong, compelling, and persuasive reasons" would be required to justify such an exceptional approach. In response to submissions that the appeal would provide much needed clarification of  the effects of a then recent decision, Zambrano v Office national de l'emploi Case C-34/09,[2011] ECR I-1177 ("Zambrano"), the Court observed that:

"... it would be highly undesirable for this Court to discuss Zambrano ... for a number of reasons, which include: firstly, the absence of any decision on its application in the High Court; secondly, the absence of any concrete set of circumstances in which any such discussion might take place; thirdly, it is quite unclear if its effects are causing any difficulties for those who perceive benefit from its provisions or those charged with the administration of the statutory scheme; fourthly, there is no fear of the issue escaping future scrutiny, as the statutory appeal process, even though specifying a "substantiality" threshold, is nonetheless sufficiently capable of accommodating a further appeal if the need to do so should arise. Finally, in view of its recent origin, it is self-evident that little opportunity has existed for judicial debate on the scope of its application: in such circumstances, one should exercise considerable forbearance and should defer further consideration of its impact, unless and until it becomes necessary to do so.

With regards to the second certified question... it seems to me that whilst acknowledging the importance of that decision and its potential significance to the underlying issues being considered, nonetheless it must be remembered that that case had a live set of circumstances as its context, unlike the instant situation. That factor, and the nature and scope of the decision itself, really beg the essential question, which is whether it is more desirable to academically overview the decision, or to adhere to the general practice of deferring its further consideration until the emergence of a concrete situation to which its consequences can be applied?...

it is quite clear that the influence of the decision itself cannot be said to have been as yet fully determined. Very much because of this I am disinclined to entertain the question in the abstract, as in my view it would be more productive and orderly in the long-term for its consequences to be integrated into our case law in the normal way, rather than by some notional pronouncement. Quite frequently a principle of law - certainly one involving concepts such as those referred to above - can best be understood in its practical application, as distinct from its theoretical positioning.

99.It should also be noted that the Minister for Justice opposes the application to have these questions determined. That of course cannot in any way be decisive, but given the centrality of his role as the decision-maker, and as operating the process by which such decisions are arrived at, his views must inevitably carry some weight in the exercise of the courts' discretion. In this respect, the case is unlike Dunne v. Governor of Cloverhill Prison[2009] IESC 11,[2009] 3 IR 378, O'Brien v. Personal Injuries Assessment Board (No. 2)[2006] IESC 62, [2007] 1 IR 328 or Irwin v. Deasy [2010] IESC 35, (Unreported, Supreme Court, 14th May, 2010) where the equivalent office holder was most anxious to have the matters determined.

A further reason for my reluctance to deal with the questions relates to the adjudicative role of the courts in our system of law. Given the nature of the Minister's responsibility in the context under discussion, which undoubtedly involves, from time to time, some margin of judgment within overall policy - albeit one to be exercised in accordance with law - a decision in hypothetical circumstances is less appropriate than what it might be in other circumstances".

21.              The Applicant argued that the Court of Appeal's decision in Kovacs v Governor Mountjoy Women's Prison [2016] IECA 108 was analogous to this case. In Kovacs, the respondent unsuccessfully argued that an appeal should be dismissed as moot. The appellant's three month suspended sentence had been activated by a subsequent conviction which resulted in a further one-month sentence commencing on the "expiration of the sentence imposed by the first warrant". The High Court found that the original conviction was void but upheld the detention under the second warrant. The appellant, who was on bail pending the ruling, re-entered custody and was released an hour later. Finlay Geoghegan J observed that the real issue was whether the Court of Appeal should exercise its discretion to hear the appeal on an exceptional basis, noting that not doing so would leave underlying rulings in place:

"11. ... There is also the judgment of the High Court which determines that in circumstances where there are warrants which impose consecutive sentences and where the second warrant is prescribed to commence on the legal expiration of the sentence imposed by the first warrant, and where the conviction and sentence in respect of which the first warrant is issued are held to be void, the second warrant is considered as lawful authority to detain the subject of the warrant in custody.

12. The relevant principles appear to me to be succinctly stated by Murray J., in an ex tempore judgment in Shui Jie Liu v Governor of the Dóchas Centre (Unreported, Supreme Court, 27th June, 2013) with which Denham C.J. and MacMenamin J. agreed, in essence repeating what the Supreme Court had said in Irwin v Deasy [2010] IESC 35: 'The general practice of this Court is to decline, in principle, to decide moot cases. In exceptional circumstances where one or both parties has a material interest in a decision on a point of law of exceptional public importance, the court may in the interests of the due and proper administration of justice determine such a question. However, the discretion to hear an appeal where there is no longer a live controversy between the parties should be exercised with caution, and academic or hypothetical appeals should not be heard. Exceptions may only arise where there is a question of exceptional public importance at issue and there are special reasons in the public interest for hearing the appeal.'

13. I am satisfied that the point of law at issue is one of exceptional public importance. It determines whether or not a person may be held in lawful custody. However, that of itself does not warrant the hearing of an appeal as has been made clear by Denham C.J. in her judgment in Lofinmakin v Minister for Justice [2013] 4 IR 274 at para. 22. There must be other factors which arise and those have been characterised as including per Murray J. in the Shui Jie Liu case a point which requires to be determined in the interests of the due and proper administration of justice.

14. The Supreme Court in DPP v Farrell [2014] IESC 30 again revisited these questions and in that case where there was a point of law of systemic importance to criminal procedure, they determined that they would hear the appeal and Denham C.J. in her judgment set out the reasons for which she decided on the facts of that case that she would hear that particular appeal. In that case it must be pointed out that the appellant was again a governor of a prison, but in effect the appeal was being pursued by the Director of Public Prosecutions. One of the reasons given by Denham C.J. was that the decision had an effect on criminal proceedings which was of real and reasonable concern to the appellant in the case and another was that the decision potentially affected many criminal cases and a third was that the decision had a systemic relevance to cases before the court where an application of judicial review was granted.

15. In my view there are some similar reasons in this case, albeit that I have considered carefully that the appellant is not the Director but is an individual who, for the reasons I have indicated, does not have an interest in the outcome of the appeal herself. Nevertheless, the decision of the High Court does have an effect on criminal proceedings in the sense that it has an effect on the lawfulness of the detention of persons who are potentially detained under two warrants in respect of sentences which are to run consecutively. It is of systemic relevance to Article 40 applications before the court which concern the liberty of the citizens and by reason of s. 99 of the Criminal Justice Act 2006, as amended, there is a significant prevalence of two or more consecutive sentences in respect of warrants issued by the courts and in particular where a first suspended sentence is caused to be activated by a second conviction.

16. It appears to me that whilst the principles in relation to the requirements for certainty and a lack of ambiguity in warrants as set out (amongst other places) in the judgment of this Court in Mullen v Minister for Justice [2014] IECA 26, may be considered to be well established, their interaction with the situation which arose in the High Court in this case, (where the conviction and sentence in respect of which the first warrant was issued had been held to be void and there was a second warrant which was prescribed to commence on the legal expiration of the sentence imposed by the first warrant) has not been considered by either the Supreme Court or this Court. In those circumstances it appears to me that consistent with the principles as set out by Murray J. in Shui Jie Liu there is the additional feature that it is in the interests of the due and proper administration of justice that this appeal be permitted to continue and that the issue against which the appellant appeals be heard and determined by this Court".

Hogan J's concurring opinion agreed that, although moot, it was in the interests of justice for the Court to hear the appeal because it came "within what might be termed the Shui Jie Liu and Farrell exceptions."

22.              Odum and Okunade, like Lofinmakin were mootness issues in deportation cases. At para. 32 of Odum, O'Donnell CJ  re-affirmed the 'core principle' that the mootness doctrine 'is based on the importance in the common law system of the resolution of cases which can [be] characterised as present, live controversies". Okunade became moot pending the appeal hearing before the Supreme Court. The Court nonetheless heard the appeal on the basis that it "was informed that issues of the broad type which arise in this case are likely to occur on a regular basis". (para. 106)

Discussion

23.              The Applicant says that because no minimum sentence was specified in his case (or, it appears, for other s.15A sentences in excess of 10 years), there is no period during which the Respondents were precluded from considering him for temporary release under s.2 of the Criminal Justice Act 1960 and that, by wrongly interpreting the sentence as providing for a minimum period, the Respondents have improperly fettered their statutory discretion. In the alternative he argues that, if s.27(3) does preclude the Respondents from considering the applicant for temporary release, it is repugnant to the Constitution.

24.              In addition to robustly denying the merits of the Applicant's challenge (issues which I am not resolving), the Respondents argued that there is no longer a live controversy, real issue or legal dispute. The foundation of the action has disappeared. Its outcome will be of no practical significance to the applicant as there is no reason to anticipate that he will again be convicted of s.15A offences.  It would also be inappropriate for the case to proceed because his circumstances would differ from those of other individuals seeking temporary release.

25.              The Applicant countered that the case does not concern the exercise of the discretion in his particular circumstances.  The proceedings are confined to eligibility for consideration rather than the outcome in his particular case. In respect of eligibility, he is in the same situation as others convicted of s.15A offences and identical issues will arise for others.

26.              The Respondents noted that a danger of deciding moot cases is that their analysis is in a hypothetical vacuum, divorced from concrete facts. I agree with that concern in principle. However, that risk does not arise here - this case depends on discrete legal issues. It contrasts sharply with Lofinmakin in that regard. In that case the challenge was to a deportation order and the court noted that the issues arising in the context of such orders are particular to the facts of each case. As McKechnie J noted at para. 14, any decision would accordingly be 'based on hypothesis and would be an advisory opinion'. At para. 27 the Court concluded that, "if there were a deportation order at any time in the future there would be additional issues of law to those that framed the basis of the [First Instance] decision".

27.              The Respondents also submitted that the action should not proceed because there was no entitlement to remission which was discretionary. That argument would be unanswerable if the claim concerned the exercise of the discretion.   However, it solely concerns eligibility. The outcome of any such consideration - the eventual grant or refusal of such remission - is a separate issue and differentiating factors between the applicant and other prisoners go to the exercise of the discretion, not the right to be considered.

28.              Both Irish and international authorities demonstrate the Courts' recognition that the mootness doctrine cannot be allowed to prevent important issues being litigated.  An international example is the US case of Roe v Wade 410 US 113 (1973).  The US Supreme Court heard the landmark case which (for many years at least) established the legal position as to abortion in the United States although the issue was moot in that particular case. The plaintiff had apparently given birth before the appeal came on for hearing.  It is difficult to fault the logic of allowing the hearing to proceed.

29.              The Courts have emphasised the judicial reluctance to hear moot issues without good reason even if they raise important issues. Generally, the public interest and the doctrine of the separation of powers, requires the Courts to refrain from deciding questions which have become moot and to eschew any legislative or policy making function. However, the Supreme Court has also made clear that the rule is not absolute. As decisions such as McDonagh, Kovacs and Okunade demonstrate, there is a discretion. The application of this discretion is governed by the principles outlined by McKechnie J at para. 82 of his judgment.

30.              There is no dispute in this case as to whether the issue is moot. Accordingly, I must exercise the court's discretion. McKechnie J observed that

"the basis for the exercise of this discretion has not been particularised to any great extent and perhaps we should not be afforded to do so may have the unintended effect of being overly prescriptive or of foreclosing on the limits of a discretion with rigid or inflexible consequences. At the level of principle however it seems to me that, where the overriding interests of justice require a decision on the moot, the same should be given."

31.              The examples of mootness which McKechnie J listed at para. 65 of his seminal judgment and set out in full at para. 10 of this judgment, all refer to issues which had concluded and were unlikely to recur, or at least not in exactly the same circumstances.  For example, scenario [a] was the repeal of an impugned provision "leaving no issue" (whereas in this case the applicant's release from imprisonment may have left no issue for him but did leave the same issue as far as any other individuals are concerned).  The same is true of other scenarios identified by McKechnie J.  All eight appear to be examples of situations in which the lis was conclusively resolved by the event which rendered the proceedings moot and in which, if a similar issue arose in future, it would be in different circumstances.  However, in scenario [g] McKechnie J implied that the death of a party contesting the validity of a statutory provision would only render the proceedings moot if the individual was contesting the validity "in circumstances individual to him/her".  The Applicant in this case would argue that he was not contesting the validity or interpretation of the provision in circumstances unique to himself and would also say that, unlike in Lofinmakin, the current uncertainty was actually causing difficulties "for those who perceive benefit from (the statutory) provisions".  

32.              Similarly, McKechnie J's observed at para. 66 of his judgement that the expiry of particular legislation did not render the proceedings moot in Condon because "it was far from clear that rights had not been interfered with" and there was a real possibility of reenactment of similar legislation. (Although decisions such as Condon sometimes characterised issues as not having become moot because issues remained live, Courts now tend to characterise that scenarios as cases which the Court should exercise its discretion to hear notwithstanding that the issue may have become moot in the particular case).

33.              McKechnie J approved Sopinka J's observation in Borowski that an issue may still retain its character as a matter of live controversy if a decision would be beneficial to either party in related proceedings.  In this case, the decision may not be beneficial to the current litigants, it would be beneficial to other individuals in the same position and as the Applicant, to borrow the language of Condon, it is far from clear that rights had not been interfered with.  In terms of the criteria outlined at para. 82 (vii) of his judgement (as noted at para. 18 above) the following factors militate in favour of allowing the proceedings to continue;

a.       there is or will be a continuing adversarial relationship between the respondent and parties who are or will be in the same position as the applicant

b.      the form and substance of the proceedings, the nature of the dispute, the nature of the issue and frequency of its occurrence and the particular jurisdiction invoked

c.       the type of relief claimed

d.      the (possible lack of) opportunity for further review of the issue in other cases.  Other individuals will be in the same position as the Applicant but their cases may also become moot before the case is resolved thus perpetuating a potential injustice (this contrasts with Lofinmakin where there was "no fear of the issue escaping future scrutiny").

e.       the way the decision might impact on the respondents' functions and responsibilities and the need to resolve the issue as to whether they are unlawfully fettering their discretion in such cases.

f.         there is a potential benefit and utility of such a decision in public law terms

g.      The issue is important terms of judicial policy because sentencing is a crucial judicial function and constraints on sentencing and the consequence of any such constraints have significant constitutional implications and implications for the liberty of affected individuals.

h.      there is a benefit in terms of importance to the administration of justice and bringing legal certainty

i.        the costs are involved in proceeding with the hearing are appropriate and preferable to incurring further costs in respect of litigation which may become moot before the proceedings are resolved

j.        it is appropriate given the judicial responsibility to uphold the constitution and the significance of the issue in terms of giving effect to the will of the Oireachtas as expressed the legislation while respecting individual rights.  

34.              the authorities lead me to the following conclusions:

a.       the appeal raises important points of law but that alone does not mean that the Court should determine a moot issue.

b.      the applicant no longer has a material interest in the dispute and the respondents do not seem concerned to have the issue resolved by the Court. However, the issues do have the potential to continue to impact on others.

c.       there is a genuine controversy and a real issue as to whether the respondents' approach was valid. The same issues will affect other individuals sentenced to terms of more than ten years for s.15A offences. Accordingly, the essential issue has not disappeared (as it had in Lofinmakin) and a judicial resolution could be immensely significant to others in the same position as the applicant. To paraphrase Okunade, similar issues "are likely to occur on a regular basis".

d.      Accordingly, the claim could not fairly be described as "purely hypothetical or academic", even though there is no "live, concrete dispute" between the parties - the live, concrete dispute is between the respondents and others subject to s.27.

e.       In Lofinmakin, the action was not allowed to proceed but unlike this case, complex issues needed to be determined in their individual factual context. In Lofinmakin the issues were not as discrete as in this case (or as in Kovacs).

f.        The substantives issues are important points which the courts have yet to resolve. The issue affects the administration of justice and individuals' rights, liberty and equality. In all the circumstances the interests of justice necessitate allowing the case to proceed notwithstanding its mootness.

g.      My conclusion (that these issues should be resolved notwithstanding that the proceedings have become moot) is reinforced by the Applicant's invocation of articles 5 and 14 of the European Convention on Human Rights and by the analogous decision of the European Court of Human Rights in Clift v United Kingdom [2020] ECHR 1106.

h.      If the Applicant has been wrongly excluded from consideration, then other prisoners in the same situation are likely to suffer the same fate. In view of the potential implications for their liberty, the issue should be resolved expeditiously.

i.        Even leaving aside the fundamental constitutional issues in terms of individual liberty, there is an important public interest aspect to the lawful operation of the temporary release scheme. The provision reflects the perceived societal benefit of offering temporary, controlled, release to prisoners subject to appropriate terms and conditions. These may relate to their residence, signing on arrangements, restrictions on use of alcohol and drugs etc.  The scheme is intended to facilitate the successful rehabilitation of offenders. This is intended not only to be in their interests but also in the interests of society as a whole. If the Applicant is correct in his contention that the Respondents are wrongly excluding individuals who are eligible for such consideration, then the will of the Oireachtas (as expressed in the legislation) is being frustrated. (If the legislation no longer reflects the will of the Oireachtas, then it should be amended).

35.              It is important in terms of the administration of justice and enhancing legal certainty that these issues should be resolved. It would also be more efficient in terms of resource costs that the case should proceed to hearing because, as the Applicant submitted, these issues will inevitably arise in the same terms in other cases. In those circumstances, it is desirable the matter should be resolved sooner rather than later.

36.              A key reason to avoid moot hearings - that future cases will turn on their own facts and circumstances - is not the case here. The legal issues which the Applicant seeks to ventilate in these proceedings will apply to others in the same situation. However, unless this action proceeds, it is impossible to say when the issue will be resolved. If the Applicant's doubts as to the lawfulness of the Respondents' position were ultimately vindicated, then other individuals could be prejudiced by a delay in resolving the issue.

37.              The Respondents observed that other individuals' particular circumstances could vary greatly but the Applicant submitted, correctly in my view, that such individuals' positions appear identical as regards the eligibility issue which is the subject of these proceedings. If such individuals were found to be eligible for consideration, the outcome of the exercise of the discretion to offer them early release, would depend on their respective circumstances. However, this case is not directed to the outcome, but only eligibility, which is common to all individuals serving sentences of 10 years or more for s.15A offences.

38.              Ultimately, as McKechnie J noted, the "overriding interests of justice" must govern my approach. The Court of Appeal's unassailable logic in Kovacs drives me to conclude that this is one of the exceptional cases in which is appropriate to hear a moot case:

a.       In the light of the constitutional imperative to protect individual liberty, the narrow statutory interpretation and constitutional issues raised in these proceedings should be resolved. It would be invidious if the mootness doctrine were to frustrate the exercise of constitutional rights, impacting on individuals' opportunity to be considered for temporary release and rehabilitation.

b.      It would also be unfair if state bodies were to strategically use the mootness doctrine to avoid the litigation of constitutional issues, thereby depriving affected individuals of effective remedies and opportunities to vindicate their constitutional rights (in fairness, there was no suggestion of such a strategic approach here).

39.              I accept the Applicant's submission that the risk that other actions will also become moot, indefinitely preventing the resolution of significant legal issues and depriving affected parties of effective remedies is a further reason to determine the issue, and the relevance of this factor appears from Lofinmakin and Okunade.

40.              Normally, judicial economy is a persuasive reason for not hearing a moot case. Finite judicial resources are generally best used on live issues. However, I agree with the Applicant's submission that on this occasion, judicial economy considerations militate in favour of allowing the action to continue with a view to settling an issue which the Courts will likely have to address at some point. It seems desirable to resolve an ongoing issue which will otherwise be likely to lead to litigation in future, particularly since it has implications for the liberty of affected individuals. Unless this case goes to trial, there will inevitably be further attempts to litigate the same issue. Some such cases may also be rendered moot. This raises the concern that there may be other false dawns before the issue finally gets to trial. This would be wasteful in terms of the resources of the parties and the Courts. Such unnecessary effort and expense cannot be in the public interest. Nor should the mootness doctrine become a barrier to access to justice.

41.              If the Respondents' position is correct, then it would be beneficial to them and to other parties that that should be confirmed once and for all, providing clarity and certainty and reducing the likelihood of further legal challenges. The Respondents should have nothing to fear from the hearing of these issues in view of their confidence in their legal position. The undoubted effort and expense involved in any such hearing would be counterbalanced by the effort and expense which would otherwise be involved in repeatedly addressing the issue in other litigation until the issue is finally settled.  

42.              If, however, the grounds of challenge are vindicated in any respect, then it would be in the public interest for this to be confirmed sooner rather than later, so as to vindicate the rights of other prisoners in the same situation and to enable the latter's applications for temporary release to be duly considered in accordance with the law. While the discretion may not be exercised in a particular individual's favour, it may be in at least some cases. In any event, in that scenario all affected prisoners should at least be considered eligible (even if the discretion goes against them). It would be wrong for the Respondents to maintain their current stance if the Applicant's challenge was well-founded

43.              Unlike Lofinmakin, the issues have, to use McKechnie J's language, a concrete legal setting - they are sufficiently embedded within their factual or evidential framework to resolve the original issue. They are based on tangible rather than imagined facts: a definite setting rather than conjecture. The reference point in these proceedings is very much focussed on resolving defined issues in a defined setting, rather than an abstract context, reducing, as McKechnie J noted, the danger of inadvertently overstepping the proper reach of the judicial role. This is a case in which, as Ó Dálaigh CJ put it in his dissenting opinion in McDonald v Bord na gCon [1964] IR 350, the specific facts of the case themselves exemplify the repugnancy complained of (which was also the position in Kovacs).

44.              McKechnie J emphasised the Court's residual discretion to deal with cases even if they were moot, stating that:

"At the level of principle however it seems to me that, where the overriding interests of justice require a decision on the moot, the same should be given".

45.              He also approved the Canadian Supreme Court's conclusion in Borowski that:

"expense may still be justifiably incurred in determining an important and recurring point, otherwise moot, which by the nature of the proceedings is likely to evade review if the doctrine is strictly applied: he instanced the validity of interlocutory injunctions given as part of industrial disputes which in his experience were almost always resolved by appeal date"

46.              As McKechnie J noted, the High Court decisions in Irwin and O'Brien "both, in some very definite, specific and constraining way, gravely impacted on the performance of statutory functions". That observation is equally true in this case, as in Kovacs. However, both bodies in those two cases were anxious to have the issues determined (with a view to setting aside a ruling which, albeit moot, would constitute a damaging precedent from the statutory body's perspective. McKechnie J noted that the statutory body's concern to resolve the issues was a relevant factor in the exercise of the discretion. However, in this case, as in Kovacs, the status quo actually suits the public body. I do not consider that that can resolve the matter.

47.              McKechnie J observed in Lofinmakin that, given the centrality of his role as the decision-maker, and as operating the process by which such decisions are arrived at, the fact that the Minister for Justice opposed the application to have the moot questions determined "must inevitably carry some weight". However, he also stipulated that such views could not "in any way be decisive" and he contrasted Lofinmakin to Dunne No. 1, O'Brien, and Irwin where the office holder was anxious to have the matters determined. By way of example, in O'Brien, PIAB was unhappy with the High Court ruling that it was not entitled to refuse to communicate with the personal injury claimants' solicitors if that was the particular claimant's preference. The Supreme Court accepted the appeal as being an important net issue which was likely to recur, and which went to PIAB's core statutory functions. In the event the Supreme Court upheld the High Court ruling. If the first instance decision had been to the opposite effect, then PIAB would have had less incentive to seek the resolution of the issue on appeal but the desirability or otherwise of the hearing proceeding cannot be dependent on whether the status quo suits the powers that be. The substantive Supreme Court decision ([2008] IESC 71, [2009] 3 IR 243) referred at para. 126 to PIAB's interpretation potentially depriving Plaintiffs "of a longstanding right to legal representation in respect of all aspects of the resolution of a civil action". It seems to me that if the High Court decision had endorsed such an (erroneous) interpretation of the law on such a significant issue, the Supreme Court would inevitably have allowed the appeal to proceed even if it was the plaintiff, not PIAB, which was agitating for that course and even if the issue had become moot from the particular plaintiff's perspective (since it could potentially arise in the same terms in every subsequent personal injury action where a claimant exercised his "longstanding right" to legal representation.

48.                In Kovacs, as in this case, the officeholder opposed the Court exercising its discretion to resolve the moot issue, but the Court of Appeal had no hesitation in proceeding notwithstanding the public body's view. I respectfully agree with that approach and with McKechnie J's view that the officeholder's view cannot possibly be decisive. Indeed, this seems to follow from the logic of Lofinmakin. McKechnie J commented that both O'Brien and Irwin impacted on the performance of statutory functions "in definite, specific and constraining ways and that both bodies were anxious to have the issues determined" and it is equally true that the current position in this case impacts on the performance of the Respondents' statutory functions in definite, specific and constraining ways - although they may be rather less anxious to have the issues determined, their wishes cannot be determinative particularly when there are strong grounds to conclude that the current approach certainly appears to causing difficulties for affected individuals who perceive benefit from the temporary release provisions (to paraphrase McKechnie J once again).

49.              Courts must be independent in the exercise of judicial discretion - to defer to other parties, including statutory bodies, would seem inconsistent with the Bangalore Principles of Judicial Independence and Impartiality and with the corresponding principles laid down in Irelands Guidelines for the Judiciary on Conduct and Ethics, including the obligation under Principle 1.3 to be free from influence by the executive and legislative branches of government. The Court must independently adjudicate and uphold the law and the Constitution. Also there would be a fundamental unfairness and inequality of arms if the State's preferences were to be indulged where a hearing was required to review precedents to which it objected (as in O'Brien) but such hearings were to be refused when the body preferred to maintain the status quo, notwithstanding genuine legal doubts about important issues affecting the rights and even the liberty of citizens. Such a strategic deployment of the doctrine of mootness would not be fair or in the public interest. While the attitude of a public body is relevant (and would certainly be a reason to proceed to hear an issue notwithstanding that it is moot), it cannot be determinative and is less persuasive in terms of exercising the discretion either way. While the respondents have the statutory responsibility of applying the discretion provided for under the legislation it is exclusively the function of the Court's to determine its correct interpretation and its constitutionality (see also Ulster Bank Ireland DAC v Financial Services and Pensions Ombudsman [2024] IECA 231 in this regard). Accordingly, it is for the Courts to determine whether to proceed with a hearing of such issues, notwithstanding their mootness.

50.              One of the explanations noted by McKechnie J for the Court hearing an arguably moot issue in Dunne No. 1 was that the issue was central to the District Court's exercise of its jurisdiction to extend time for the service of a book of evidence:

"a jurisdiction which as a matter of notoriety is exercised with the utmost frequency - it may well be that, noting the widespread and grave consequences which would result from the wrongful exercise of such a power, the Court decided, as a matter of discretion" (to deal with the issue notwithstanding that it was moot).

The same logic would arguably apply here. To paraphrase the comments of McKechnie J at para. 82, although the issue no longer particularly affects the Applicant, there is still a dispute or conflict capable of being justiciably determined. There is a continuing adversarial relationship, albeit involving other prisoners rather than the applicant which means that the case to retains its essential characteristic as a legal dispute. The nature and importance of the issue and its likely recurrence are significant factors as is the risk that the failure to resolve the issue could potentially prejudice individuals' ability to assert their statutory entitlements, deprive them of effective remedies and impact on their liberty. As in Kovacs, the resolution of such an issue is important in terms of justice and the administration of justice, including obtaining greater legal certainty as opposed to the social cost of the status quo. The costs involved in determining the issue appear to me to be justified and to be preferable to avoiding the likely expenditure of having the same issue relitigated in other proceedings. It is also appropriate that the Courts should adjudicate this issue, given its relevance to sentencing and criminal sanctions and the operation of the prison system, in constitutional terms. As in Kovacs, there are strong, compelling, and persuasive reasons which satisfy me that the exceptional circumstances render it appropriate for the court to exercise its discretion to hear the case notwithstanding its mootness.

51.              In Lofinmakin, there was no reason to expect future deportation proceedings against the father, but in any event such proceedings would turn on the then prevailing circumstances which would be significantly different to those grounding the proceedings before the Court:

"Consequently, even if the third appellant should again face peril from a ministerial proposal, both the legal context and the factual context are likely to be so different from the present, that a decision on the instant case would have virtually no effect on any future case, which of course in itself remains uncertain and unpredictable, and indeed may never even materialise".

52.              One issue in particular would have been relevant to other asylum cases; the effects of a then recent decision, Zambrano, but:

"... it would be highly undesirable for this Court to discuss Zambrano for a number of reasons, which include: firstly, the absence of any decision on its application in the High Court; secondly, the absence of any concrete set of circumstances in which any such discussion might take place; thirdly, it is quite unclear if its effects are causing any difficulties for those who perceive benefit from its provisions or those charged with the administration of the statutory scheme; fourthly, there is no fear of the issue escaping future scrutiny, as the statutory appeal process, even though specifying a "substantiality" threshold, is nonetheless sufficiently capable of accommodating a further appeal if the need to do so should arise. Finally, in view of its recent origin, it is self-evident that little opportunity has existed for judicial debate on the scope of its application: in such circumstances, one should exercise considerable forbearance and should defer further consideration of its impact, unless and until it becomes necessary to do so".

53.              Accordingly, Lofinmakin involved different factual circumstances, rendering it unsuitable for resolution when it became moot. By contrast, the issue in this case can be "understood in its practical application, as distinct from its theoretical positioning". This case cannot be characterised as "a decision in hypothetical circumstances", the scenario which Lofinmakin was concerned to avoid. I am particularly influenced by the Court of Appeal's decision in Kovacs and I agree that there is a point of law of exceptional public importance which the court should determine in the interests of the due and proper administration of justice determine notwithstanding that it is moot. Confirming the eligibility issue and clarifying the rights of prisoners is desirable and there are special reasons in the public interest for hearing the action. As in Kovacs, the action could determine whether certain persons may be held in lawful custody and the point should be determined in the interests of the due and proper administration of justice. I do not consider it an exaggeration - particularly from the perspective of the potentially affected prisoners - to perceive the issue as a point of law of systemic importance to the operation of the prisons and the temporary release scheme, as far as the affected prisoners are concerned. As in DPP v Farrell [2014] IESC 30 ("Farrell") and Kovacs, the decision potentially affected other criminal cases and had a systemic relevance to cases before the court. Accordingly, it is in the interests of the due and proper administration of justice that this appeal be permitted to continue and that the issue against which the appellant appeals be heard and determined by this Court.  To paraphrase Hogan J's comments in Kovacs, although this action is moot, it is in the interests of justice that the Court should hear it because it comes within the Shui Jie Liu Jie Liu v Governor of the Dóchas Centre (Unreported, Supreme Court, 27th June, 2013) and Farrell exceptions.

Conclusion

54.              Accordingly, I consider that that it is appropriate to allow the case to proceed. I propose to dismiss the Respondents' application, and accordingly it appears that the Applicant is presumptively entitled to his costs on a party and party basis, to be adjudicated in default of agreement.  However, if either party wishes to make submissions in respect of whether that or any other costs order should be made or concerning any other aspect of this judgment, then they have liberty to file submissions (of 2000 words or less) within 14 days of the date (and if they do not intend to file submissions they should likewise inform the Court within the same period).  Depending on the terms of such submissions (if any), I will either relist the matter to deal with any outstanding issues or instruct the registrar to perfect the order in appropriate terms and I will remit the matter to the judicial review list for directions generally.

APPEARANCES

Colman Fitzgerald SC, instructed by Broderick, Cahalane Moore Solicitors, for the Applicant.

Kathleen Leader SC, instructed by the Chief State Solicitor's Office, for the Respondents.

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