The High Court dismissed a judicial review challenge by Edward O’Reilly to the decision to end his temporary release from the Midlands Prison. Mr Justice Garrett Simons held that the Assistant Governor’s inquiry was adequate and the revocation lawful. The court did not decide whether O’Reilly was guilty of criminal trespass.
O’Reilly had been released on 18 March 2020 for a month, with conditions including that he be of good behaviour. On 6 April, Gardaí found him with several members of his extended family and dogs on private property in an industrial estate. The family’s explanation was that they were hunting rabbits. A Garda superintendent told the prison that O’Reilly had been trespassing and that a prosecution would follow, and asked that his release be revoked.
After O’Reilly was returned to prison on 9 April, the Assistant Governor spoke with him the next morning. O’Reilly admitted being on private property and said he had been hunting and had used the ground for years. He said he did not think he had done anything wrong. The Assistant Governor accepted the Garda account that a prosecution was intended and concluded that the release condition had been breached.
O’Reilly argued that being on private property while hunting did not, by itself, establish criminal trespass, which requires criminal intent. He submitted that the Assistant Governor had relied on an allegation without adequately examining whether an offence had occurred. The Governor’s counsel argued that the inquiry was informal and did not have to resemble a criminal trial.
The judge held that a prison authority cannot revoke temporary release solely because a prisoner is accused of an offence. It must make its own inquiry, reach a reasonable conclusion based on objective material, and give the prisoner a fair opportunity to respond. The inquiry need not determine guilt beyond reasonable doubt or resolve possible defences to a criminal prosecution.
In this case, the judge found that the Assistant Governor could rely on O’Reilly’s admission that he had been on private property, alongside the Garda information and the stated intention to prosecute. O’Reilly had been told of the allegation and given an opportunity to answer it. The court therefore found the decision lawful and dismissed the judicial review.
The Governor had also argued that the case was moot because the month-long release period had expired before the hearing. The judge rejected that as a basis for avoiding the claim: when proceedings began on 17 April, the release period remained in force, and O’Reilly was challenging his return to prison for the final nine days. Having dismissed the case on its merits, the court said it was unnecessary to rely on mootness. The formal order was to include a recommendation that the Legal Aid – Custody Issues Scheme apply.