Supreme Court of Ireland Decisions

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

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

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

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

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

6. The Minister, in correspondence with the applicant’s solicitors, gave three grounds for his refusal to specify the applicant as being a “qualifying prisoner”, i.e.,

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

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

9. In the light of those findings of the learned High Court judge, one would have expected the order of the High Court to have dismissed the application for relief by way of habeas corpus, certiorari and declarations. For reasons which are not clear, however, the order, as passed and perfected, grants an order of certiorari quashing the decision of the Minister not to consider the applicant as being a “qualifying prisoner”. In his submissions to this court on behalf of the applicant, Mr. Brendan Grogan SC accepted that the order did not reflect the judgment as delivered by the learned High Court judge and both he and Mr. Sean Ryan SC, on behalf of the respondents, approached the case on the basis that the essential issue with which this court was now concerned was whether the trial judge was correct in concluding that the Minister was entitled not to specify the applicant as a “qualifying prisoner”. No notice to vary the judgment of the trial judge in respect of the other two grounds had been served on behalf of the respondents.

10. Before turning to the relevant provisions of the 1998 Act, with which this case is concerned, I should point out that the Good Friday Agreement consists of two documents. The first is what is described as “the multiparty agreement”. The second is what is described as the “agreement between the government of the United Kingdom of Great Britain and Northern Ireland and the government of Ireland”, which was executed on behalf of the two governments on the same day as the multiparty agreement was assented to by the parties thereto, i.e., the 10th April 1998, the latter document being set out in Annex 1 to the agreement.

11. The long title of the 1998 Act describes it as an Act to

12. S.2 of the Act provided for the establishment of the Commission. S.3 then went on to provide as follows:-

13. S.4 provides that

14. The Schedule is as follows:

15. The language used in these excerpted provisions of the multiparty agreement, it will be noted, are not what one would associate with a purely legal document, as witness the informal phraseology used in the third sentence of paragraph 3. That choice of language reflects the political nature of the arrangements embodied in the document, but, for present purposes, it is sufficient to note that, while “qualifying prisoners” are to be those “convicted of scheduled offences in Northern Ireland or, in the case of those sentenced outside Northern Ireland, similar offences”, there is no indication of what is meant by a scheduled offence. However, an affidavit sworn by a Northern Ireland solicitor, Padraigin Drinan, deposed to the fact that the offences of which the applicant was convicted in March 1995 and July 1995, if committed in Northern Ireland, would be scheduled offences within the meaning of Schedule 4 of the Northern Ireland (Emergency Provisions) Act 1973.

16. Schedule 4 of the Northern Ireland legislation includes a wide range of offences, including murder, manslaughter, arson and riot, and also extending to offences in respect of firearms.

17. The argument on behalf of the applicant is as follows. He is currently serving sentences in Portlaoise Prison in respect of offences which, in the language of paragraph 1 of the provisions in the Schedule to the 1998 Act are “similar offences” to “scheduled offences in Northern Ireland”. He is not affiliated to an organisation which has not established or is not maintaining a complete and unequivocal ceasefire and is, accordingly, a “qualifying prisoner” who is entitled to benefit from the arrangements put in place by the 1998 Act. The Minister was not entitled to deprive him of his status as a “qualifying prisoner” by deciding that prisoners convicted of crimes which were not connected with the Northern Ireland situation could not be regarded as “qualifying prisoners”. No such provisions appears anywhere in the 1998 Act and the courts are not empowered to rewrite legislation in order to make it conform with what is presumed by the court to have been the intention of the Oireachtas.

18. However, the provisions of s.4 of the Act itself provide an insuperable obstacle to that submission. They expressly empower the Minister to specify the persons who are to be “qualifying prisoners” for the purposes of the relevant provisions of the multiparty agreement. That was the manner in which the Oireachtas chose to implement the obligations imposed on the State by virtue of either or both documents comprising the Good Friday Agreement. I have no doubt that the Minister, in exercising the power conferred on him by the Oireachtas to specify the persons who should be “qualifying prisoners” for the purposes of the relevant provisions of the Good Friday Agreement, was entitled to have regard to whether the offences in respect of which they were serving terms of imprisonment were not merely scheduled offences in Northern Ireland or similar offences in this jurisdiction but also arose out of the situation in Northern Ireland which had led to the entering into of the Good Friday Agreement. As I have already pointed out, the provisions relating to prisoners set out in the Schedule are all excerpted from the multiparty agreement, a document couched, in this and other sections, in language which one would not normally associate with a document intended to impose precise and specific obligations on the parties. In the agreement between the two governments, the government of Ireland undertook to implement, where appropriate, the provisions of the multiparty agreement.

19. The Minister was fully entitled to conclude that the parties who had assented to the provisions contained in the multiparty agreement had not contemplated the accelerated release of prisoners convicted of crimes having nothing whatever to do with the political situation which has existed in Northern Ireland for many years. The 1998 Act, indeed, did not confer any power of release in favour of prisoners: it essentially provided for the establishment of a Commission to advise the Minister as to the exercise by him of his existing powers of release in relation to those he specified as “qualifying prisoners”. It was for the Minister alone to decide what persons were “qualifying prisoners” and whether he should request the Commission to advise him as to the exercise by him of his powers of release. Whether one construes the provisions literally or in a purposive manner, the result is the same: it was the clear intention of the Oireachtas that the Minister, should (a) decide what persons should be regarded as “qualifying prisoners” having regard both to the relevant provisions of the multiparty agreement and the subject matter of that agreement and (b) request the Commission, if he thought it appropriate, to advise him as to the exercise by him of the power of release already vested in him in relation to such prisoners. That did not confer on the applicant in this case, having regard to the admitted fact that he is not serving a term of imprisonment in connection with any offences arising out of the Northern Ireland situation, any right to be treated by the Minister as a qualifying prisoner.

20. I would dismiss the appeal and affirm the judgment of the learned High Court judge. I would substitute for the order of the High Court an order dismissing the application for relief by way of habeas corpus, certiorari and declarations.

21. The Applicant is a convicted criminal serving a sentence imposed by the Special

22. Criminal Court for serious offences to which he pleaded guilty in 1995.

23. Relying on the provisions of the Criminal Justice (Release of Prisoners) Act 1998 the Applicant seeks an Order setting aside a refusal of the Second Named Respondent (“ The Minister ”) to consider the Applicant as being a qualifying prisoner under the terms of the Agreement Reached in the Multi-Party Talks (the Multi-Party agreement) and refusing to refer his case to the Release of Prisoners Commission established by the 1998 Act as well as a declaration that he is a qualifying prisoner within the terms of the said agreement and the provisions of the 1998 Act.

24. In short the Applicant seeks such declarations as will require the Minister to treat him as a ‘ qualifying prisoner’ within the meaning of the Act and refer his case to the Release of Prisoners Commission so that it may advise the Minister in the exercise of “any power of release ” in relation to him.

25. The essential purpose of the Criminal Justice (Release of Prisoners) Act 1998 is the establishment of a Commission to advise the Minister, as the long title to the act puts it, “ in specified circumstances ” with respect to the exercise by the Minister of “ any power conferred ... on him or her to provide for such release ...”

26. The Act does not create or confer on the Minister any new power to release prisoners. The definition section, section 1 states that “ “ power of release”, in relation to prisoners, means of power conferred on by the government or the Minister, as the case may be by or under any enactment to provide for -” the release, including temporary release of a prisoner or the remission or commutation of any punishment.

27. In this case we are only concerned with a power of release of the Minister.

28. From these two sections it is clear that they can have no application to the situation of a prisoner unless firstly the Minister has at least decided to consider the exercise of a power of release in relation to that prisoner, secondly, the release is being considered by reference to ‘ the relevant provisions ’ and thirdly the prisoner has been ‘ specified by the Minister ’ to be a ‘ qualifying prisoner’ for the purposes of those provisions.

29. It follows that when the Minister is considering whether to exercise a power of release in relation to any prisoner including a “ qualifying prisoner ” it is a power which derives not from the 1998 Act but from some other enactment.

30. Before going on to consider further the actual provisions of the Act, I think it is important to consider first of all the nature of the Minister’s powers of release in relation to prisoners since the exercise or possible exercise of such a power is the first element

31. There are various statutory powers pursuant to which the Minister may consider releasing prisoners. These are the Offences against the State Act 1939 (section 33), the Criminal Justice Act 1951 (section 23) and the Prisoners (Temporary Release) Rules 1960 made pursuant to Section 2 of the Criminal Justice Act 1960. (SI 67 of 1960).

32. By reason of the first of the two aforementioned Acts powers have been conferred or delegated to the Minister to release prisoners and the third of those Acts relates to a regime of temporary release of prisoners for a specified period, with an obligation to return to prison at its termination, which is implemented by the Governor or person in charge of a prison subject to the directions of the Minister. The powers of release given or delegated to the Minister pursuant to these enactments confer on him a wide discretion as to how he shall exercise those powers.

33. The exercise of such a power was considered by Finlay, C.J. in D.P.P.-v-Tiernan [1989] ILRM 149 at 153 where he described the power of release of a prisoner vested in the Executive as “ a matter of a policy pursued by the Executive at given times and subject to variation at the discretion of the Executive .” Although that case concerned an imprisonment for life, the same ratio applies to imprisonment for a determinate period ( Kinahan -v- The Minister for Justice and Ors , The Supreme Court, 21st February, 2001, unreported ). In Murray -v- Ireland and the Attorney General [1991] ILRM 465 Finlay C.J. held “the length of time which a person is sentenced to imprisonment for life spends in custody and as a necessary consequence to extent to which, if any, prior to final discharge, such a person obtains temporary release is a matter which under the constitutional doctrine of the separation of powers rests entirely with the Executive ;”

34. It is clear from the foregoing that when the Minister exercises a power of release, he is exercising an executive function of a discretionary nature within the ambit of the enactment conferring those powers. As Finlay C.J. in Murray -v- Ireland and the Attorney General went on to state “ the exercise of these powers of the Executive is of course subject to supervision by the Courts which will intervene only if it can be established that they are being exercised in a manner which is in breach of the constitutional obligation of the Executive not to exercise them in a capricious, arbitrary or unjust way ”. None of these particular grounds have been raised here but of course Finlay C.J. was not excluding review by the Courts should the Minister exercise his discretion in a manner which conflicted with statutory provisions, if any, governing its exercise.

35. However, once the Minister’s power is exercised within the ambit of his discretion then it is a purely Executive discretion not reviewable by the Courts except in the circumstances referred to above. The history of the release of prisoners in the exercise of Executive clemency indicates that the exercise of such clemency has always been a privilege accorded to such prisoners and not something to which they are entitled as of right. It would require express words in a statute to impose on the Minister (or the government) a positive obligation to release or to consider the release of a prisoner earlier than the normal expiry of his or her Court imposed sentence.

36. It follows from the foregoing that when the Minister is considering whether to exercise a power of release he has a very wide discretion indeed. The exercise of that discretion will reflect a policy pursued by the Executive at the given time ( D.P.P. -v- Tiernan , cited above). He may, for example, decide to release a prisoner on compassionate grounds, for reasons of old age or other special reasons always having regard to the particular circumstances of the case. The exercise of this discretion is not generally reviewable by the Courts.

37. In the present case if the Minister was considering the release of the Applicant for any of the reasons which I have just mentioned the 1998 Act would have no application because he would not be considering whether to release the Applicant by reference to the “ relevant provisions ”, that is those provisions of the Multi-Party agreement which appear under the heading “ Prisoners”. That is what Section 3 of the Act provides and even then it presupposes that the Applicant would have been specified by the Minister as a qualifying prisoner for the purposes of the relevant provisions.

38. In fact none of these elements are present in this case.

39. The Minister has not specified the Applicant to be a qualifying prisoner and is not considering or purporting to exercise any power of release under any enactment in relation to the Applicant let alone a power of release by reference to the “relevant provisions.”

40. These are matters which fall entirely within the Minister’s discretion. Whether he should consider or actually exercise a power of release in relation to any prisoner, by reference to any particular criteria, is a discretionary matter for the Minister.

41. The outstanding issue arising from the case made on behalf of the Applicant is whether the 1998 Act, and in particular the schedule to the Act, imposes an obligation on the Minister to act in a particular way in relation to the Applicant or otherwise restricts the manner in which the Minister exercises his discretion in respect of a power of release.

42. The contention on behalf of the Applicant is that the schedule to the 1998 Act, which recites those provisions of the Multi-Party agreement which figure under the heading “Prisoners”, contains a definition of what constitutes a qualifying prisoner for the purposes of the 1998 Act. It is submitted that if the provisions recited in the schedule and contained in the Multi-Party agreement are applied to the situation of the Applicant he comes within the notion of “qualifying prisoner” as therein described. In particular, the Minister was confined to considering the matters set out in the cited provisions and was not entitled to take into account other factors such as that the offence in respect of which the Applicant was convicted was not an offence connected with the Northern Ireland situation. Accordingly, the Applicant asserts that the Minister is bound to treat him as a qualifying prisoner and refer his case to the Commission so that the Minister may be advised by it regarding his release in accordance with the terms of Section 3 of the Act.

43. These submissions appear to be based on a misconception that the provisions of the Multi-Party agreement which are recited in the schedule form an operative part of the Act. In fact they are included for reference purposes only as Section 3 (4) makes clear when it states “ In this section “relevant provisions ” means those provisions of the agreement reached in the Multi-Party talks which appear under the heading “prisoners” in that agreement and which, for convenience of reference , are set out in the schedule to this Act.” (emphasis added).

44. The references to the relevant provisions of the Multi-Party agreement in the Act are simply a means of identifying the kind of cases to which the process of referral to the Commission under Section 3 will apply.

45. There is no provision of the 1998 Act which enacts or purports to enact any of the provisions of the Multi-Party agreement as part of our legislation. That agreement represents engagements and commitments solemnly entered into by the parties to the agreement. As is usual in such agreements, the obligations are inter-partes. It does not confer rights on particular individuals which may be invoked before the courts. The provisions of the Inter Party agreement which appear under the heading “Prisoners” represent certain commitments entered into by both of the governments with regard to an accelerated programme for the release of prisoners referred to in those provisions. That is to say that both governments agreed to pursue a certain policy concerning the release of such prisoners. How the parties to the agreement interpret their mutual obligations is not a justiciable issue in this case. In my view since the Applicant is not entitled to invoke the terms of the agreement as conferring on him specific or individual rights under the 1998 Act it is not necessary to enter upon an interpretation of the relevant provisions of the agreement for the purposes of deciding the issues raised in this case. Having regard to the provisions of the Act there are particular circumstances in which it might be necessary for the Court to have regard to the terms of the relevant provisions contained in the Multi-Party agreement. If in a particular case, the Minister had specified a prisoner to be a qualifying prisoner and had decided to exercise a power of release in relation to that prisoner then an issue could arise as to whether the power of release was being exercised by reference to the relevant provisions and thus requiring the Minister to take account of advice from the Commission. In short, the issue would be whether it was a release being made by the Minister by reference to the relevant provisions. That is obviously not the issue in this case since the Minister simply does not consider he should release the Applicant and furthermore has not specified him to be a ‘ qualified prisoner’ .

46. Accordingly the relevant provisions of the agreement represent stated policy considerations by reference to which the Minister may, in his discretion, exercise a power of release created by statute.

47. The 1998 Act is a mechanism which enables the Minister to pursue that policy in a particular manner. All the Act does is to require the Minister, once he has, in his discretion, decided to release or consider the release of a prisoner by reference to those provisions, to refer the matter to the Commission, where appropriate, for its advice.

48. As I have already pointed out this also presupposes that the Minister has specified the prisoner in question as a qualifying prisoner. Section 1 of the Act provides that “ “qualifying prisoners” shall be construed in accordance with Section 3(2) of this Act”. Section 3(2) refers to “ persons specified by the Minister to be qualifying prisoners for the purposes of “the relevant provisions.” ” Accordingly, the Oireachtas has not purported to define qualifying prisoner when it enacted the 1998 Act but specifies what the Minister should do when considering the release of prisoners specified by him as a qualifying prisoner for the purposes of the relevant provision.

49. I would summarise my conclusions as follows:

50. The Minister has statutory powers to release prisoners pursuant to the Acts referred to earlier in this judgment. The 1998 Act does not confer on him a power or obligation to release prisoners.

51. The criteria or policy considerations by reference to which he decides to exercise any power of release rest within his discretion. That discretion is not affected by the 1998 Act which does not oblige him to release or consider the release of a prisoner by reference to any purposes generally or the provisions of the Multi-Party agreement in particular.

52. If he decides to release a prisoner by reference to reasons which have nothing to do with the provisions of the Multi-Party agreement then obviously the procedures specified in the Act could have no application.

53. If the Minister specifies a person as a qualifying prisoner and is considering that release by reference to the relevant provisions of the Multi-Party agreement then Section 3 requires him, when appropriate, to refer the matter for advice to the Commission. That process of referral for advice is the essential mechanism established by the Act and indeed its fundamental purpose is the establishment of the Commission..

54. Since the exercise of the power of release of the Minister pursuant to any of the relevant enactments is at all times a matter for executive discretion he is entitled to take into account any consideration which he considers material to the exercise of that discretion unless it can be shown that he did so in a capricious arbitrary or unjust way. In this case the Minister decided not to release the Applicant. In exercising his discretion in this respect he was entitled to take into account all the matters of which the Applicant now complains. There is nothing in the 1998 Act which inhibits him from doing so and it has not been alleged that his decision was otherwise arbitrary, capricious or unjust.

55. In the circumstances I do not consider it is necessary to interpret the relevant provisions of the All-Party agreement or review the Minister’s interpretation of it. However, in so far as it may be appropriate to consider those matters, I agree with the judgement of the Chief Justice.

56. Accordingly, I would disallow the appeal.