THE director of the Central Mental Hospital, Dundrum, has advised that he could not justify the continued detention of Mr John Gallagher, who was found guilty but insane of two Co Sligo murders, the High Court was told yesterday.
The court was told Dr Charles Smith, in a letter to the Department of Justice last year, said he could not detain Mr Gallagher on the grounds of his imminent dangerousness because he did not think it existed, or of illness because he was not ill.
An advisory committee last July was also of the unanimous view that he would not be a potential danger to any member of the public if he were released for limited periods in the immediate future.
Mr Gallagher (29), Lifford, Co Donegal, is seeking an inquiry into his continuing detention on the grounds that it is unlawful. He was found guilty but insane of the murders of his former girlfriend and her mother in September, 1988.
Mr Justice Kelly gave him leave to seek the inquiry and said it was clearly a matter that had to get priority as it concerned detention. A date would be fixed next Monday for the hearing.
The Minister will have to give reasons for Mr Gallagher's continuing detention.
Mr Gallagher claims the Minister for Justice can no longer form the view he was suffering from any mental disorder as there was no evidence of it.
He also states the Minister has no power to make his release conditional upon the acceptance by him of an educational course or to order his conditional release on a limited programme of outings where his detention is not otherwise justifiable.
Mr Frank Clarke SC, for Mr Gallagher, read an affidavit of Mr Dara Robinson, solicitor for the applicant. Mr Robinson said Mr Gallagher's case had again been considered by an advisory committee in July 1995. In its report, the committee stated it was of the unanimous view that he "would not be a potential danger to any member of the public were he released for limited periods of freedom in the immediate future".
The opinion of Dr Smith was expressed in a letter of July 25th, 1995, to Mr Barry O'Connor at the Department of Justice.
In the letter, Dr Smith said there is nothing about this man at the moment to suggest that he is imminently dangerous. There are no identified victims to my knowledge, no strategies planned, no scores to settle, no illness driven aggressions that one would worry about.
"I have an emerging situation to deal with that leaves me quite uncomfortable because my role in it is far from clear. I can't justify this man's continued detention on illness grounds because he is not ill. I can't detain him on the grounds of his imminent dangerousness because I don't think it exists. He is caught up in preventative detention, detention just in case, and that is ordinarily considered unsatisfactory.
The Minister wrote to the committee's chairman in November 1995, stating that she interpreted the committee's reference to releasing the applicant on a trial basis as indicating that it had residual doubts as to his suitability for release and that caution should be exercised.
She was of the view therefore that a limited programme of outings for Mr Gallagher should be considered.
If the outings and a renewal of education were proceeded with the Minister intended that a progress report would be issued to the committee in good time for its midsummer review of Gallagher's situation.
In the affidavit, Mr Robinson said that in July 1989, Mr Gallagher was found guilty but insane in relation to two murder charges. By order, he was detained in the CMH until further court order.
On January 29th, 1990, Gallagher applied to the court for his release. The order of 1989 was amended and in December 1990 a further order was made directing his detention in the CMH until the pleasure of the Government was made known. In February 1991, the Supreme Court held the order was properly made under the Trial of Lunatics Act 1883.
The Minister then established an advisory committee to consider applications for release by persons found guilty but insane. Gallagher made an initial application in October 1991. The committee advised the Minister he should not be released.
Judicial review proceedings about this decision were settled on the basis that a second committee should consider the case. In 1994, it also recommended he should not be released.
Mr Gallagher again started High Court proceedings challenging the legality of his detention, resulting in an order in December 1994 that the matter be remitted to the Government for further consideration.
The advisory committee sat in July 1995 and its recommendation and Dr Smith's opinion were forwarded to the Department.