Section 2 of the Criminal Justice Act 1960, as inserted by s. 1 of the Criminal Justice (Temporary Release of Prisoners) Act 2003 provides inter alia:-
- “The Minister [for Justice] may direct that such person as is specified in the direction (being a person who is serving a sentence of imprisonment) shall be released from prison for such temporary period, and subject to such conditions, as may be specified in the direction or rules under this section applying to that person — (a) for the purpose of — (ii) preparing him for release upon the expiration of his sentence of imprisonment, or upon his being discharged from prison before such expiration…”
The applicant was serving a custodial sentence in prison, during which time a deportation order was made in respect of him. He applied to revoke the order. His application for revocation was refused and he was notified thereof. On the same date, he was granted temporary release under the Act of 1960, following which he was transferred into the custody of the Gardai and deported. The temporary release notice stated that the purpose of the release was “pre-release/resocialisation.”
Proceedings were instituted on behalf of the applicant, in which he argued that the decision to grant him temporary release was unlawful because deportation was not one of the purposes for which a person could be released from prison in accordance with the Act of 1960. He pointed to the regulations made under the Act, which provided that the person being released had to return to the prison from which he was released on or before the expiration of the period for which he was released.
The respondent contended that the applicant had been released in accordance with s. 2(a)(ii) of the Act of 1960 and that the purpose of the release was “preparing him for release upon the expiration of his sentence of imprisonment, or upon his being discharged from prison before such expiration.”
The court made a declaration that the temporary release order was made for an unlawful purpose.
The court held that the only reason the applicant had been released from prison was to facilitate his immediate deportation from the State and that it was not connected with any course of preparation for release from prison at the end of his sentence.
The respondent relied upon a dictum from the decision of Fennelly J. in the Supreme Court’s decision in Dowling v Minister for Justice  2 IR 535 to the effect that temporary release decisions were entirely within her discretion, acting in the exercise of executive clemency on behalf of the State. The applicant rejoined that that dictum applied to the legal framework governing temporary release which predated the 2003 amendment of the Act of 1960.
The court held that the applicant’s submission was correct and that there was a significant difference between the old rules and the amended rules. The legislature had established a comparatively elaborate scheme under the Act of 2003 and the rules implemented under it in 2004, which set out the basis upon which the executive could grant temporary release.
The court also rejected the respondent’s contention that it was not open to a person like the applicant to challenge the legality of a temporary release order. Whilst the executive enjoyed discretion in the manner in which it granted the privilege of temporary release, the extent of that discretion had been significantly curtailed by the considerations set out in s. 2 of the Act of 1960.
The court held that s. 2(1)(a)(ii) of the Act of 1960 provided for the temporary release from prison of a person in preparation for ultimate release on the expiration of sentence.
The grant of temporary release in the instant case was not in preparation for the applicant’s ultimate release from prison: its sole purpose was to facilitate his deportation and that was not permitted by s. 2 of the Act of 1960. The temporary release notice therefore also misstated the purpose of the applicant’s release.
In the court’s view, it would be inappropriate to quash the temporary release order, as that would effectively direct the applicant, should he return to the State, to return to prison. Instead, it made a declaration that the temporary release order was made for an unlawful purpose.