THE three High Court judges hearing the inquiry into the continued detention of John Gallagher in the Central Mental Hospital, Dundrum, yesterday reserved judgment in the case.
Gallagher claims his continued detention is unlawful. He brought the proceedings under Article 40 of the Constitution which requires the court to consider the lawfulness of his detention.
Presiding judge of the divisional court, Mr Justice Geoghegan, said that clearly they would be reserving their judgment. Ms Justice Laffoy and Mr Justice Kelly also sat.
Gallagher, from Lifford, Co Donegal, was found guilty but insane of the murder of his former girlfriend, Anne Gillespie, and her mother, Annie Gillespie, in the grounds of Sligo General Hospital on September 18th, 1988.
Yesterday, on the fourth day of the hearing, Mr John Rogers SC, for the State, said the Minister for Justice, Mrs Owen, had made a decision to allow Gallagher to go on outings for three hours a month for six months. This was a testing process. Absolute release did not arise.
The purpose of the testing was to establish the dangerousness, if any, of Gallagher.
Mr Rogers said Gallagher wanted the Minister to say that she had made a decision to release him. The State's case was that the issue was one of safety and dangerousness.
Gallagher's counsel had said, that the Minister had made no decision. The State's case was that the decision was made when the Minister said she was going toe accept the advice of the advisory committee on whether Gallagher should be released and allowed the outings. Ms Owen also sought the approval of the Government.
Mr Donal O'Donnell SC, for Gallagher, replying, said the approach taken by the Minister and the Department to the consideration of Gallagher's application was a position of studied ambiguity, a deliberate vagueness adopted on central matters.
Gallagher was still a citizen of this State. One could only consider his future dangerousness as part of his present mental condition.
Mr O'Donnell said his case was focussed on the lawfulness of the apparent refusal of the Minister in the absence of medical evidence of Gallagher's application for release.
What the Minister did must be deemed to be a refusal. The decision to be taken by the Minister was on whether or not Gallagher suffered from a mental disorder warranting his continued detention. That was the central matter and the Minister had taken no decision on that.
Gallagher was making the application on the grounds that he was not suffering from a mental disorder that warranted his continued detention.
His situation warranted a phased release to test the belief that he was recovered.
During the four day inquiry, Dr Charles Smith, clinical director of the CMH, told the court that he accepted that Gallagher's mental disorder gave rise to a risk of dangerousness in future.