The Supreme Court yesterday quashed a Ministerial order which resulted in a man spending over three years in Mountjoy prison without being charged with an offence.
Glen Dowling had previously served 10 years on foot of a murder conviction but was released in June 1999 on "temporary release renewable monthly". Six months later, he was reimprisoned.
Dowling (38), formerly with an address at Green Park Terrace, Bray, Co Wicklow, had claimed he was detained since December 1999 without reason.
He was sentenced to life imprisonment in January 1989 for the murder of Mr David Byrne (22), St Anne's Park, Shankill, Co Dublin. After serving 10 years, the Minister for Justice, Equality and Law Reform in June 1999 granted him "temporary release renewable monthly".
Dowling was due to sign on at Mountjoy Prison training unit on December 23rd 1999 when the prison authorities were told that he had been arrested earlier that morning and questioned regarding the death of another man, Mr Joseph Vickers, in Greystones on December 13th, 1999.
Dowling was never charged in relation to the Vickers death. Despite that, it was decided not to renew Dowling's temporary release when he reported to the prison training unit on December 23rd, 1999. The Prison Service was only told in December 2001 that the DPP had decided no charges should be levied against Dowling in relation to the Vickers death.
Dowling sought to challenge the Minister's decision to terminate his release but the High Court refused an application for judicial review.
Dowling appealed to the Supreme Court which yesterday unanimously upheld the appeal.
Temporary release is governed by the 1960 Criminal Justice Act which gives no express power to revoke or terminate a temporary release but Section 6 deems a person on temporary release to be unlawfully at large if they break any conditions. They must be of good behaviour, "sober habits" and not communicate with the media. They may also be arrested without warrant.
In his judgment, Mr Justice Fennelly said Dowling was granted "monthly renewable temporary release under the supervision of the Probation and Welfare Service...". The communication from the Minister's Department also wished Dowling "best wishes for his future success".
The argument before the court turned essentially on the correct interpretation of the Minister's decision granting Dowling temporary release.
Mr Justice Fennelly said temporary release decisions were entirely within the Minister's discretion and the present case was concerned only with the interpretation of a decision already made.
The Minister's decision conveyed, unless there was some breach of condition, that Dowling was entitled to remain on temporary release. Since there was no properly established breach of condition in this case, then Dowling was entitled to have the decision set aside.
The judge said the wording of the temporary release decision did not provide for "individual and discrete monthly decision". The decision included the word "renewal" and it followed that the renewal of the monthly release was an integral part of the original decision. The reality of the situation, and the words conveyed, that Dowling was going to be indefinitely on temporary release, provided he was of good behaviour. The Minister was not going to reconsider the matter each month. Dowling's temporary release was brought to an end simply because he had been questioned in relation to another crime.
Mr Justice Murray, in a separate judgment, said the grant of a monthly renewable temporary release could not in the circumstances of this case be considered as constituting a discrete release for each successive month for which Dowling was at liberty but rather a more general temporary release subject to specified conditions of his release being complied with.
In a letter from prison written in February 2000, Dowling had said he had complied fully with the release conditions.