A warrant has ordered for the rearrest of Limerick man Eddie Ryan after the Supreme Court overturned a High Court ruling that released him.
The Supreme Court ruled today that Article 40 of the Constitution was not the appropriate grounds under which to make the release application.
Earlier the Supreme Court requested that lawyers for the State address the court on the applicability of habeas corpus (an order requiring a detained person to be brought before a court) in such cases.
The request was made by Chief Justice Susan Denham who was sitting with Mr Justice Adrian Hardiman and Mr Justice John McMenamin.
Robert Barron SC, appearing with barrister Anne-Marie Lawlor for the State, said in the last week two High Court judges had declined habeas corpus court inquiries under Article 40 of the Constitution.
The High Court judge in the Ryan appeal before the court had not only ordered an inquiry but granted the release of the prisoner.
Mr Barron said a similar order had been granted in the case of Niall Farrell by Mr Justice Gerard Hogan, which is also under appeal.
Mr Barron said there was no right of remission. There was discretion for the Minister for Justice to grant remission. He said that once there was a valid conviction and a valid warrant and detention and the terms of the warrant had not expired then, he argued, it was not appropriate to have an Article 40 inquiry.
Colman Fitzgerald SC, who appears with barrister Karl Monahan, will be making the submissions of behalf of Mr Ryan.
Mr Ryan is the 31-year-old son of Limerick man Eddie Ryan (snr) who was shot dead in the Moose Bar in Limerick in November 2000.
He and his brother, Kieran, were jailed in 2010 after pleading guilty to possession of a high-powered firearm and ammunition in the city. He was sentenced to six years imprisonment in the Midlands Prison.
In a High Court application before Mr Justice Max Barrett, he claimed that under the 2007 prison rules he was entitled to be released with a full third remission because he had been of good behaviour and participated in authorised structured activity designed to qualify him for the enhanced remission.
Judge Barrett ordered his release after finding the Minister had erred in reaching his decision not to grant Ryan the extra remission.
He held that, under Rule 59(2), the Minister was empowered to grant additional remission when a prisoner had shown good conduct by engaging in the authorised structured activities and was satisfied that, as a result, the prisoner was less likely to re-offend and would be better able to reintegrate into the community following release.
The judge said the policy behind the rule appeared to be one of seeking to incentivise and reward engagement by prisoners in a pro-active manner in voluntary activity which Mr Ryan had done.
He said Mr Ryan had engaged in some activities but not in some others and it appeared that some activities were viewed by the authorities as better than others. The fact that some activities were so preferred by the State had never been advised to Mr Ryan.
Judge Barrett said the exercise of a jurisdiction to commute or remit sentence was a constitutionally reserved function which lay with the Minister who, the court accepted, had before him deficient information to which he ought not to have had regard.
The Minister in stating he would only exercise his power “sparingly and in the most exceptional cases” had imposed a pre-condition to and fettered the exercise of his discretion that was irrational.
The case had presented “that capriciousness, arbitrariness or, at the very least, unjustness” previously referred to by Supreme Court judges McCarthy J. and Hardiman J.
“If one winnows away any deficient information on which the Minister relied and has regard to such correct information on which he ought to have relied, there is only one possible logical conclusion the Minister could have reached...Mr Ryan had participated in activities aimed at reducing recidivism and reintegrating into the community,” Judge Barrett said.
The judge had held that a degree of remission earned but irrationally and unjustly refused tainted the balance of the term of imprisonment with illegality. The entirety of the balance of sentence remaining could not be lawful and he directed Mr Ryan be released.
A second judgment by Mr Justice Gerard Hogan, who in almost identical circumstances and for similar legal reasons released convicted IRA member Niall Farrell, has also been appealed to the Supreme Court.