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1. The Applicant in this matter is currently serving a sentence in Castlerea Prison having been convicted on Bill No. - 0007-97 at the Castlebar Circuit Criminal Court, sitting at Westport, before his Honour Judge Harvey Kenny on the 17th February 1998 on charges of possession of a controlled drug for the purposes of supplying it to another contrary to section 15, subsection 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.

2. The Applicant was sentenced to a period of five years imprisonment with the latter two years of his sentence to be suspended. The sentence was to run from the 20th day of January 1998.

3. The Applicant applies to the Second named Respondent, the Governor of Castlerea Prison for temporary release and this application was refused by letter dated the 9th June 1999. At paragraph 3 of the said letter, Mr. John Kenny, of the Prisons Operation Division at the Department of Justice, Equality and Law Reform states:-

4. As a result of the said letter the Applicant initiated proceedings in November 1999 and obtained leave by way of an Order from Mrs. Justice McGuinness on Monday the 15th November 1999 to pursue the release as set out in the Applicant’s statement grounding the application for a Judicial Review.

5. The case made by the Applicant comes in three layers as follows:-

6. I intend to approach this matter in a parsimonious fashion, as follows:

7. The Criminal Justice Act, 1960 provides as follows:-

8. I raise the question as to where the power to grant temporary release came from. I was informed by Counsel for the Respondent herein that section 2(1) of the Criminal Justice Act, 1960 is in itself the source of such power.

9. The rules made in relation to temporary release for a person serving a sentence at Castlerea Prison, the pertinent rules to this application are set out in Statutory Instrument S.I. 157 of 1998, being the Temporary Release of Offenders (Castlerea) Rules 1998.

10. Articles 3 and 4 of these Regulations are relevant to this application; Article 3 provides:-

11. Article 4 provides:-

12. The Applicant initially submits that the refusal to grant him temporary release is, in itself, a contravention of Articles 3 and 4 quoted above.

13. I cannot this submission.

14. It is clear that what has happened is that the Minister for Justice has adopted a policy that persons serving sentences for serious offences, and in particular for offences involving supply of drugs, are not to get temporary release. I would be of the view that the Regulations and in particular Article 4 of Statutory Instrument 157 of 1998 permit the Minister for Justice to deal with prisoners on a category basis and hence to apply a policy which effects 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.

15. The Applicant in his next submission then proceeded to challenge the Regulations themselves. In essence the Applicant’s case is that the terms of section 2(1) of the Criminal Justice Act, 1960 do not permit categorisation. In particular, Mr. Finlay S.C. makes reference to the phrase: “as may be imposed in each particular case”. Mr. Finlay submitted that this phrase indicates that prisoners are to be dealt with on the basis of their individual cases and excludes a policy which deals with prisoners on the basis of category or class.

16. In the course of argument Mr. Doherty, Counsel for the State, conceded that the phrase: “subject to such conditions” refers to those conditions imposed on a prisoner who has been granted temporary release.

17. I cannot find in the section anything that permits the Minister to deal with prisoners on a category basis. I accept Mr. Finlay’s submission that the inclusion of the phrase “as may be imposed in each particular case” indicates an intent 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. Thus, there is nothing in the section, properly construed, which would give to the Minister a power to make Regulations which have the effect of denying temporary release to prisoners on the basis of type or category or class into which they fall.

18. I am therefore driven to the conclusion that Article 4 of Statutory Instrument 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. The said section does not allow for categorisation or classing of prisoners. As Article 4 permits the Minister to direct in relation to the release of any category or class of prisoner 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.

19. As a result of this conclusion, it is not necessary for me to go on to consider the third layer of the Applicant’s submissions and accordingly I express no view on that submission.