MR Justice Hugh Geoghegan said that, as a result of a Supreme Court decision in 1991, it was a matter for the Executive to decide when, if at all, Gallagher was to be released, but the steps taken by the applicant, or lack of them, with that in view, were capable of being judicially reviewed.
For some years he had been trying to achieve his release either absolutely or by way of phased release on the grounds that he was not suffering from any mental illness. He was supported in this view by the clinical director of the hospital, Dr Charles Smith, and by other medical advisers, including Dr Art O'Connor.
It was perfectly obvious that neither Dr Smith nor Dr O'Connor ever agreed with the verdict of the jury. They did not consider Gallagher was ever insane in the legal sense, but it was the verdict of the jury which had to be accepted and respected.
Mr Justice Geoghegan said that over the years, the Minister had set up three different advisory committees to advise her in connection with Gallagher's applications for release. In August, 1995, the third committee, chaired by Mr James A. Nugent SC, had advised: "The committee is of the unanimous view that Mr Gallagher would not be a potential danger to any member of the public if he were released for limited periods of freedom in the immediate future. The committee recommends that a programme of limited periods of freedom be instituted on a trial basis. These periods should be carefully monitored and conditions, such as a ban on alcohol consumption or substance abuse, should be imposed. The committee recommends that Mr Gallagher's case should be reviewed . . . after a period of one year."
Despite subsequent Departmental advice on the matter: the Minister still made no decision even as to limited outings until May, 1996. He found it difficult to discern any excuse for this de-jay but a decision had now been made. The delay in making it did not, in his view, affect the lawfulness of the detention.
Nothing much seemed to have been done until an order of Mr Justice Kelly for a conditional order of habeas corpus, after which there was a flurry of activity. A reasonable inference could be drawn that but for this order the delay in making a decision would have been even longer.
The Inspector of Mental Hospitals, Dr Dermot Walsh, had on April 25th, 1996, informed the Minister that he had consulted with Dr Smith and it was the opinion of both of them that Gallagher had recovered from the mental illness believed to have been present at the time of the offences and had undergone substantial maturation and stabilisation of personality.
In a letter in which Dr Smith had expressed his views it was stated: "Newspaper reports suggest I am promoting his release and that is far from the truth. When I say he is not imminently dangerous I mean I would be unworried if he were foolish enough to run away from accompanied parole.
"I would not be anxious that he would immediately become dangerous to others in the short term. However, if he was at large and stressed and pressurised, I would have to be concerned about the possibility he would disintegrate into some sort of dangerous state.
"The only way I know of testing out medium and long term dangerousness is over a phased release period, and I am talking about several years.
"I am not Mr Gallagher's jailer and I cannot therefore reflect or represent the broader wishes of society that he should stay detained for a long time to come".
Mr Gallagher knows I am not promoting his immediate freedom. More than once I have asked him to grasp at any parole opportunities presented to him and to settle into a phased release programme and consider himself lucky that he was being considered for that so early in his detention. Understandably, he is dissatisfied with the slowly moving process I suggest and he is going for immediate release. I do not blame him for that."
Mr Justice Geoghegan said that the letter summarised Gallagher's current position and his position on May 14th, 1996, when a letter was sent to his solicitor communicating the Minister's decision. This stated: ". . . The Minister is of the view that a limited programme of outings for Mr Gallagher, with hospital staff alone initially and, at a later stage, with members of his family and hospital staff, should now be considered. Each authorisation for a particular outing will be contingent on satisfactory outcome of previous outings.
"In particular, she proposes to grant a programme of outings along the following lines over the next six months: June/November, 1996. One escorted outing one day each month accompanied by hospital staff; December, 1996. One escorted outing plus family outing in Dublin area at Christmas accompanied by hospital staff. The programme will be reviewed at the end of this period.
Mr Justice Geoghegan said that, although a reasonable inference might be drawn that the timing of this decision was related to the habeas corpus application, he did not think that any inference could be drawn that the contents of the decision were purely cosmetic and were in some way unrelated to the advice received from the advisory committee.
While some legitimate criticism might be levelled at the Minister for her delay in making a decision, he did not think there was any evidence to suggest that the decision itself was not believed to be a proper one and to comply with the advice of the committee. Her cautious approach was a reasonable one.
