The High Court has ruled that Gerard Kelleher's challenge over access to the temporary-release system can continue even though he has already been released from prison under a different scheme.
Kelleher had been sentenced on 8 December 2016 to several prison terms, including 12 years for two serious offences under section 15A of the Misuse of Drugs Act. The Irish Prison Service and other State respondents treated him as serving a mandatory minimum period and therefore ineligible for consideration for temporary release until that period expired.
Kelleher disputes that interpretation. His case is that the sentencing court did not expressly specify a minimum term and that the statutory restriction therefore did not apply. Alternatively, he argues that the State's interpretation would make the provision unconstitutional.
Those substantive questions were not decided in this judgment.
While the judicial review proceedings were progressing, Kelleher qualified for enhanced remission under a separate statutory scheme and was released. Both sides accepted that this made his individual claim moot. The State asked the court to stop the proceedings.
Mr Justice Liam Kennedy refused. He found that the case raises discrete legal issues about eligibility rather than whether temporary release should ultimately be granted to any particular prisoner. The same question will arise for other people serving sentences of 10 years or more for section 15A offences.
The judge said there was a risk that future challenges could also become moot before reaching determination, repeatedly delaying resolution of an issue with implications for prisoners' liberty and the lawful operation of the temporary-release scheme.
The court held that this was one of the exceptional cases where the interests of justice justified deciding a moot issue. The State's application to stop the proceedings was dismissed and the substantive judicial review will continue. Costs were provisionally indicated in Kelleher's favour, subject to further submissions.