The High Court has dismissed Patrick McNamee’s application for leave to seek judicial review of a charge alleging that he was unlawfully at large after breaching a condition of temporary release from prison.
In a judgment delivered on 12 May 2016, Mr Justice Richard Humphreys said McNamee sought to stop his pending trial and challenge the requirement that he keep the peace and be of good behaviour while temporarily released. He argued that the condition was too vague to support a criminal charge, was not known to law, or that the rule setting it was invalid or incompatible with the European Convention on Human Rights.
McNamee was serving a sentence imposed in June 2014 when he was temporarily released from Mountjoy Prison on 17 December 2015. He signed a form acknowledging the release conditions and that they had been explained to him. Gardaí later alleged that, on 23 December, he was trespassing on residential property. He was arrested on suspicion of criminal trespass and later charged with an offence under section 6 of the Criminal Justice Act 1960, which includes being on temporary release after breaching a release condition.
The judgment records that bail was initially refused by the District Court and the High Court, then granted after a later application. The leave application was heard on notice to the respondents.
Justice Humphreys held that the challenge should generally wait until the criminal process had run its course. If McNamee were acquitted, the broader legal issues might not need to be decided; if convicted and his conviction upheld on appeal, a public-law challenge could then proceed on facts established at trial. He said this was not an exceptional case warranting intervention to prohibit the trial.
The judge also identified independent reasons to refuse leave. The grounding affidavit was sworn by McNamee’s solicitor rather than by McNamee, and the judge found no exceptional reason to dispense with the usual requirement for the applicant’s own evidence. McNamee had also not set out what his account of the alleged presence on the property would be, which the court said meant he had not sufficiently engaged with the facts.
On vagueness, the judge said the alleged conduct, if proved, would fall within the clear core of the requirement to obey the criminal law while on release. The court was deciding only whether leave should be granted, not whether the trespass allegation was true or whether McNamee was guilty.
The order was to dismiss the application for leave. The judgment did not determine the pending criminal charge.