MR Justice Peter Kelly said that all of the advice which the Minister had received from her Departmental officials concerning the approach to be had to the broadly in conformity with, the advice tendered by the advisory committee.

Apart from some unspecified reservations mentioned in November 1995 there was nothing to indicate that the Minister did not accept that advice.

Up to the month of December 1995 matters had been processed in the Department with a reasonable degree of expedition, and from then until the conditional order by the High Court on April 22nd 1996 no further progress appeared to have been made or consideration given to the applicant's request.

He said that to some extent this may have been brought about by a perception on the part of the Minister that the applicant was being unco operative in respect of an educational programme which had been under contemplation for him.

Dr Smith had explained that Gallagher had been unwilling to embark upon such a programme because he felt that to do so would prolong his period of detention, and the doctor had accepted that the applicant might well have been right in this apprehension.

"It is regrettable that there appears to have been so little contact with Dr Smith in this regard. Had there been, a different view of the matter might he have been taken", Mr Justice Kelly said.

He said that the letter of May 14th 1996 made it clear, in his view, that the Minister had accepted the advice of the advisory committee, and in the defence delivered by the Minister it was admitted that such advice had been accepted by her.

Mr Justice Kelly said that the legislation in the case, as interpreted, by the Supreme Court, permitted Gallagher's detention if he was suffering from a mental disorder warranting his continued detention in the public and private interests.

It was clear from the advisory committee's findings that it took a view that the applicant was suffering from a mental disorder, but that it had receded to a stage where he should not be a potential danger to any member of the public if released for limited periods.

In other words, the committee was of the view that his continued detention on an absolute basis - was not warranted in the public and private interest. The detention could be relaxed, in its view, to the extent specified in its recommendations.

This view appeared to him to be entirely consistent with the medical evidence which had been adduced before the court and it was apparent that, since May of this year, the Minister had been of the same view.

He said it was clear from the judgment of McCarthy J. in the applicant's earlier case that the question of his release from detention was a matter for the Executive, either in the person of the Government or of the Minister for Justice. It was not a matter for the judiciary.

It was equally obvious that in considering the question of his release, the Executive acted in a quasi judicial role. It was also clear that, in carrying out its task the Executive was obliged to use lair and constitutional procedures.

A failure on the part of the Executive to behave quasi judicially, or to use fair and constitutional procedures, could be subject to review by the High Court.

It appeared to him that the practical implications for the Executive in carrying out this role from a legal point of view were: (1) the decision lay with the Executive, which was not bound to accept the advice of the advisory committee, but had to give that advice due weight and consideration; (2) the applicant was entitled as a matter of law to a decision within a reasonable period of time; (3) such a decision, when given, must not be arbitrary, irrational or unreasonable; (4) it must not be reached ion an incorrect legal basis; and (5) it must accord with the constitutional doctrine of proportionality.

Mr Justice Kelly said there had been a wholly unexplained inactivity between December 1995 and April 1996 for which, in his view, there was no justification. It was not unreasonable to conclude that, but for his order, the decision would have been further delayed, and he believed that the Executive had failed in its obligations to make a timeous decision on Gallagher's request for release.

He held that Gallagher had succeeded in part in that he had satisfied him that the Executive had failed to afford him his entitlement to a timeous decision, but had concluded that the dejustify an order for his immediate release. Such a delay would have to be gross and of a magnitude far in excess of what was involved.

On the question of proportionality, he said that the Minister's programme of outings was extremely limited, but he took the view that it was broadly in accord with all of the advice and views expressed both by the committee and Dr Smith.

It was regrettable that Dr Smith's views had not been sought when the proposal was made.

He did not think it could be said that the Minister's proposal was disproportionate, in the legal sense, so as to require intervention by the court.

Mr Justice Kelly said that at some stage in the future a position might be reached where Gallagher would have passed the tests involved in the proposed phased releases and the question of his full release would have to be considered.

Such a position would not occur for some time and, in the meantime, subject to satisfactory progress, he expected the periods of freedom to be substantially increased.