Stephen Corish (applicant) v The Minister for Justice Equality and Law Reform, the Governor of Castlerea Prison, Ireland and the Attorney General (respondents).

Criminal Law - Judicial review - Leave to apply for temporary release - Applicant convicted on offence of possession of a controlled drug for the purposes of supply - Article 4 of Statutory Instrument No 157 of 1998 ultra vires the Minister for Justice - Criminal Justice Act 1960 does not permit for categorisation or classing of prisioners - Criminal Justice Act 1960, section 2(1) - Misuse of Drugs Act 1977, section 15(1) - Misuse of Drugs Regulations 1979.

The High Court (before Mr Justice O'Neill ); judgment delivered 13 January 2000.

There is nothing within section 2(1) of the Criminal Justice Act 1960 which gives to the Minister for Justice a power to make regulations which have the effect of denying temporary release to prisoner on the basis of type or category or class into which the prisoner falls.

The High Court so held in holding that Article 4 of Statutory Instrument No 157 of 1998 granted the Minister for Justice a power which exceeded the powers given to him in section 2(1) of the Criminal Justice Act 1960, which does not allow for categorization or classing of prisoners.

Peter Finlay SC and Ross Maguire BL for the applicant; John Doherty BL for the respondent.

Mr Justice O'Neill said that the applicant had been found guilty in Castlebar Circuit Criminal Court, on 17 February 1998, of possession of a controlled drug for the purpose of supplying it contrary to section 15(1) of the Misuse of Drugs Act 1977 and contrary to article 4(1)(b) of the Misuse of Drugs Regulations 1979 as made under section 5 of the Misuse of Drugs Act 1977.

Mr Justice O'Neill said that the applicant applied to the second respondent, the Governor of Castlerea Prison, for temporary release but was refused in a letter dated 9 June 1999. Paragraph 3 of the letter stated: "With reference to the question of temporary release, it is current policy not to grant this concession to offenders serving sentences for the supply of drugs". As a result of the said letter the applicant initiated proceedings in November 1999 and obtained leave to pursue his release as set out in the applicant's statement grounding the application for judicial review.

Mr Justice O'Neill noted that the applicant made three submissions for leave to appeal his refusal for temporary release. It was argued that the validity of the decision by the respondent to refuse the applicant temporary release on the grounds that the applicant was a member of a category of persons ineligible for temporary release was contrary to the regulations set out in Statutory Instrument No 157 of 1998. The applicant further challenged the validity of the Regulations on the basis that they were ultra vires the provisions of section 2(1) of the Criminal Justice Act 1960. It was also contended that the provisions of the Criminal Justice Act 1960 were unconstitutional in that they amounted to an unwarranted delegation of its legislative powers by the Oireachtas to the executive contrary to the article 15.2 of the Constitution of Ireland.

Mr Justice O'Neill outlined section 2(1) of the Criminal Justice Act 1960 as follows: "The Minister may make rules providing for the temporary releases, subject to such conditions (if any) as may be imposed in each particular case, of persons serving a sentence of penal servitude or imprisonment . . . " He raised the question as to where the power to grant temporary release came from, and was informed by counsel for the respondents that the power to grant temporary release came within section 2(1) of the Criminal Justice Act 1960. Mr Justice O'Neill then noted that the rules in relation to temporary release for a person serving a sentence at Castlerea Prison were set out in Statutory Instrument No 157 of 1998, being the Temporary Releases of Offenders (Castlerea Rules 1998.

Mr Justice O'Neill paid particular reference to articles 3 and 4 of the Regulations of which he found article 3 to be of relevance and which provides: "The Governor, or other officer for the time being in charge of Castlerea, may subject to - (a) any conditions which the Governor or such other officer may impose, (b) any directions of the Minister, (c) any exceptions which may be specified in directions of the Minister, release temporarily for a specified period, persons detained therein." Further, he noted article 4 which provides: "Directions of a Minister under Rule 3 of these Rules may be given in relation to releases generally or in relation to a particular releases or series of releases or in relation to the release of any category or class of person." Mr Justice O'Neill could not find that the refusal to grant the applicant temporary release was contrary to article 3 and 4 above.

However, Mr Justice O'Neill said that what had happened was that the Minister for Justice adopted a policy that persons serving sentences for serious offences and in particular for offences involving supply of drugs, were not to get temporary releases. He said that in his view article 4 of the Statutory Instrument 157 of 1998 permitted the Minister for Justice to deal with prisoners on a category basis and hence to apply a policy which affects a whole class or category of prisoners, such as the policy to deny temporary release to those convicted of serious offences such as the supply of drugs.

The applicant's second contention was a challenge on the regulations themselves. Mr Justice O'Neill noted that it was the applicant's case that the terms of section 2(1) of the Criminal Justice Act 1960 do not permit categorization . Counsel for the applicant submitted that the phrase "as may be imposed in each particular case" indicated that prisoners were to be dealt with on the basis of their individual cases and excluded a policy which deals with prisoners on the basis of category or class. Counsel for the State in the course of argument conceded that the phrase "subject to such conditions" refers to those conditions imposed on a prisoner who has been granted temporary release.

In summing up, Mr Justice O'Neill said that he could not find in the section anything that permits the minister to deal with prisoners on a category basis. He accepted counsel's submissions for the applicant that the inclusion of the phrase "as may be imposed in each particular case" was an indication that prisoners will be dealt with on an individual basis rather than by category. Such conditions as may be imposed in regulations under the section would relate to the conditions imposed on an individual prisoner in relation to his temporary release.

Mr Justice O'Neill concluded that article 4 of Statutory Instrument No 157 of 1998 grants to the minister a power which exceeds the power given to him in section 2(1) of the Criminal Justice Act, 1960. He said the section does not provide for the categorization or classing of prisoners. Mr Justice O'Neill said that article 4 permits the minister to direct in relation to the release of any category or class of prisoner and that this must therefore, insofar as it permits the minister to direct in relation to a class or category of prisoners, be ultra vires the provisions of section 2(1) of the Criminal Justice Act 1960. He went on to state that as a result of this conclusion it was not necessary to deal with the applicant's third submission and he expressed no view on the matter.

Solicitors: Dermot Morris and Co (Dublin) for the applicant; Chief State Solicitor for the respondents.