The Minister for Justice has received legal advice from the Attorney General on his options in relation to the fate of convicted murderer Malcolm Macarthur. However, he is unlikely to act on it until after the Nice referendum.
Mr McDowell sought the advice from the Attorney General, Mr Rory Brady, when the Parole Board recommended that Macarthur, convicted of the murder of nurse Ms Bridie Gargan 20 years ago, be moved to an open prison. Such a move usually precedes the release of long-serving prisoners.
Macarthur was arrested in the home of then Attorney General, Mr Patrick Connolly, in 1983, and charged with the murders of Ms Gargan and an Offaly farmer, Mr Donal Dunne. The DPP decided not to go ahead with the prosecution on the Dunne murder when Macarthur pleaded guilty to the murder of the nurse.
Mr McDowell was junior counsel in Macarthur's defence team at the time, and, following the report from the Parole Board, decided to ask another Minister to consider it.
He asked the Attorney General to report on the legal mechanisms whereby this could be done.
The Attorney General's report includes three options. The first is for the Minister to delegate his powers relating to the Macarthur case to another Minister. The second is for another Minister to take the decision when Mr McDowell is out of the jurisdiction.
It is normal for a Minister who is out of the State to delegate all his powers to another Minister for the duration of the visit, and a Minister with such delegated powers could then take a decision on Macarthur.
The third option is for Mr McDowell to ask the Cabinet to take a decision on the matter, and absent himself while the decision is being made.
Any decision is likely to be controversial. Macarthur is the longest-serving prisoner in the State, and it is usual for life-sentenced prisoners, if and when they are considered not to present a threat to society, to be released on parole.
But the Dunne family has said they still consider Macarthur a risk to society, and specifically to their family.
In a statement issued on August 29th, in response to an RTÉ report that Macarthur might soon be moved to an open prison, Mr Christy Dunne said: "We can see no reason why he should be either released or moved to an open prison which is almost the same as being released.
"My family have confidence in the new Minister for Justice and expect he will think long and hard before making a decision relating to Macarthur's release or transfer to open prison.
"We are of the view that this man poses a threat to society and indeed our family, and will be expressing these concerns to the Minister."
It is understood that the Minister is unlikely to decide on any of his options at the moment, especially as the Government is already under pressure on a number of fronts in the run-up to the Nice referendum.