THE HIGH COURT
                                                                                   Judicial Review 
No. 396JR 1999

BETWEEN
MICHAEL ROONEY DIGNAM
APPLICANT
AND 
HIS HONOUR JUDGE RAYMOND GROARKE
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

Judgment of Mr. Justice McCracken delivered the 17th day of November, 2000.
	The background to this Application can be shortly stated.  On 17th
July, 1998 the Applicant pleaded guilty at Naas Circuit Court to four inditable offences under the Larceny Act 1990 and the Criminal Damage Act 1990.  Sentencing was adjourned pending the provision of probation and welfare reports and on 17th November, 1998 the Applicant was sentenced by the first named respondent to three years detention on each of three of the accounts and four years detention on the fourth count, such sentences to run concurrently.  At that hearing, the first named Respondent indicated that he would review the sentence during the Trinity sittings of 1999 and ordered that further probation and welfare reports be available to him at that time.  The case came up for review before the first named Respondent on 13th July, 1999 and he released the Applicant into the custody of the probation and welfare services on condition that the Applicant keep the peace and be of good behaviour for a period of two years.
	On 28th September, 1999 the second named Respondent applied to have the matter reentered on the grounds that the Applicant had failed to comply with the condition of his release, namely to keep the peace and be of good behaviour.  The matter was duly reentered on 8th October, 1999 before the first named Respondent sitting at Dundalk Circuit Court and the first named Respondent ordered that the Applicant should serve the balance of the four years sentence imposed upon him.  By order of Mrs. Justice McGuinness dated 15th October, 1999 the Applicant was given leave to apply for an order of certiorari washing the order of the first named Respondent of 8th October, 1999 directing that the Applicant should serve the balance of the four year sentence.  
	Three issues have arisen before me:-
(a)	whether this is a matter which can be determined in Judicial 		Review proceedings;
(b)	the interpretation of the phrase “keep the peace and be of good 		behaviour”;
(c)	the nature of the proceedings before the first named Respondent 		on 8th October, 1999.
	In my view that first point can be shortly disposed of.  While it is certainly within the first named Respondents jurisdiction both to grant a suspension of a sentence and to revoke that suspension should the condition attached to it be broken, that is not the issue in the present case.  What is being alleged by the Applicant is that the first named Respondent made his decision in a manner contrary to natural justice, and in disregard of the Applicants rights.  This allegation certainly goes beyond jurisdiction as the first Respondent is bound to comply with the principals of natural justice when making a decision such as in the present case, and  if he does not do so, he is acting outside his jurisdiction, and accordingly certiorari may lie.
	With regard to the second issue, the phrase “keep the peace and be of good behaviour” is one that has been in use for centuries.  However, it does not seem to a phrase which has attracted any statutory or judicial interpretation, perhaps because it means what it says.  Mr. Mill-Arden SC on behalf of the Applicant has strenuously argued that if the Applicant is to be shown to be in breach of his condition, it must be shown that in some way he had not complied with the law of the State and further that he had been convicted of a breach of the Law before the matter could be reentered before the judge who suspended the sentence.  In my view this argument is not sustainable.  A person may not be of good behaviour even thought he has not committed a crime, and certainly even though he has not been convicted of a crime. It is not difficult to think of examples such as consistently committing a nuscence to his neighbors, and it is equally easy to think of examples of criminal offence which would not necessarily mean that the person who committed the offence was not of good behaviour, as for example a parking offence.  At the end of the day, it must be a matter for the sentencing judge in each individual case to decide whether specific behaviour while a person on remand can be said to be a breach of an undertaking to be of good behaviour.
	The final point concerns the nature of the proceedings before the first named respondent in the present case.  Fortunately there does not appear to be any real dispute as to what occurred.  
	The Applicant was realized on 13th July, 1999.  In the light of information coming from the Gardaí the second named Respondent applied ex parte to the first names Respondent on 27th September, 1999 and was granted liberty to reenter the matter at Dundalk Circuit Court on 8th October, 1999.  The Applicant’s Solicitors  were notified of this reentry and his solicitor and Counsel attended.  On that occasion evidence was given by Detective Sergeant Kelly  that it was his belief that the Applicant had been involved in two incidents.  The first of these was that the Applicant had been involved in a fracas on 18th September, 1999 in which the Applicant fatally stabbed his brother, and the second was that on 21st September 1999 the Applicant was arrested and charged with an offence under Section 112 of the Road Traffic Act 1961 as amended.  Detective Sergeant Kelly was cross examined by Counsel on behalf of the Applicant.  He stated that no charges had been preferred in relation to the alleged stabbing, and he did not know whether any charges could be preferred.  In relation to the Road Traffic Offence, he states that the Applicant had  been released on Station bail, and was remanded on bail to Kilmainham District Court on a date in December 1999.  He also stated on cross-examination that since the Applicant’s release he had not been convicted of any crime or offence.  He was not cross-examined as to the basis of his belief, nor was objection taking that his evidence would, in normal circumstances, be inadmissible as hearsay evidence.  
	Mr. Mill-Arden SC has referred to a number of English authorities as to the nature of a proper hearing in matters such as this.  However, by far the most helpful case is The State (Murphy) -v- Killet (1984) I.R. 458.  In that case, the prosecutor was granted temporary release by the governor of St. Patrick’s institution, one of the conditions of such release being that he should keep the peace and be of good behaviour during the period of release.  Less than a month after his release he was arrested on suspicion of having being involved in the shooting of a barman and was charged in the District Court with shooting with intent to murder and with possession of a firearm with intent to endanger life.  He was remanded in custody to St. Patrick's institution and the Governor, in conjunction with the Minister for Justice, decided that it was inappropriate to continue the temporary release and it was revoked.  While in that case there was no Court hearing to determine the question, the decision having been made by the Governor of St. Patrick's institution, but otherwise it seems to me the applicable principals are exactly the same.  In that case Griffen J. said at page 473:-
	
	“In my opinion, the fact that the prosecutor had been charged with 		an offence is an insufficient reason for the revocation for his 		temporary release.  Charges are frequently dropped or not 		proceeded with and, if a temporary release can be revoked merely 		or solely because the person release had been charged with an 		offence, what of the apparent injustice done to such person who, in 		the period intervening between the charge and the dropping of the 		charges, had lost the liberty to which he would otherwise have been 		entitled under the Act and the Rules?  When, on the other hand, the 		governor holds an informal inquiry, justice will not only be done but will 	be 	seen to be done.”

	McCarthy J. said at page 478:-
	
	“Accordingly, if, for instance, a person on temporary release is 		suspected by a member of the Guarda Síochána to have committed a 		breach of the peace, the person maybe arrested without warrant 		and returned to the prison from which he was released. In a given 		case this might occur years after the commencement often temporary 		release - with the immediate statutory consequence that the period 		for which he was temporarily released would thereupon be deemed 		to have expired.  It is demonstrably contrary to any concept of 		ustice that such a sequence of events could take place without fair 		procedures being enforced.  One must interpret the requirement of 		the suspicion by a member of the Guarda Siochána on the basis that 		this suspicion is to be formed upon reasonable grounds, but the 		person on temporary release, who is arrested must be given the 		opportunity those grounds.”

	Also referred with approval to a passage of the judgment in the High Court of Barron J. who said at page 465:-

	“In my view, the essentials of a valid hearing in the present case 		required at the least:- 
	1. Evidence from which it would have been fare to hold in favor of 		the allegation
	2. Notification to the prosecutor of the nature of such evidence 		sufficient to enable him to prepare a defence
	3. Time for the prosecutor to prepare a defence
	4. An opportunity to make that defence.”

	Such a hearing should have been held and should have been seen to have been held.  Such hearing did not have to be of a very formal nature, provided the minimum requirements to which I have referred were met.
	The only evidence that was available to the respondent was that the alleged offences with which the prosecutor had been charge were serious offences.  Of itself, that was not sufficient to establish a breach of any condition to which the temporary release of the prosecutor was subject.  A charge, by its very nature, establishes nothing.  It is whether or not the charge can be established which is relevant. There is nothing to suggest that the Respondent was ever in possession of any evidence from which it would have fair to hold in favor of the accusation.  I do not consider that the first condition of a hearing could have been established.  It follows form this that the other conditions became irrelevant.  
	In my opinion the prosecutor was entitled to be judged by the Respondent but not prejudged.  Since the Respondent was not in possession of any evidence from which he could have held that a breach of any condition of which the prosecutors release was made subject had occurred,  it follows that there could both have been a hearing and, accordingly, there could not have been a hearing which followed faire procedures.  The principals of natural justice could not have observed.”  
	The facts of the present case are very similar to those of the State (Murphy) -v- Kielt.  The only evidence before the first named respondent was the belief of Detective Sergeant Kelly.  It would appear that the first named Respondent made no inquiry as to the grounds for such a belief, nor is there any suggestion that the Applicant was given any notification of the nature of any evidence to be produced by the second named Respondent.  Indeed, the State Solicitor in her Affidavit on behalf of the second named Respondent said :-

	“The first named Respondent granted liberty to me to reenter the 		matter at Dudalk Circuit Court on 8th October, 1999.  The accused 		was not in Court and was not notified.  I did however as a matter of 		courtesy notify his solicitors Mrs. Dermot Morris and Co. And Jim 		Ridge BL did attend.”

	This was a situation in which the second named Respondents were seeking to deprive the Applicant of his liberty on foot of the beliefs of a member of An Guarda Siochána.  Apparently the liberty to reenter was given on foot of evidence from Detective Sergeant Kelly in the absence of the Applicant or his Solicitors, and neither the nature of that evidence, nor the nature of  the evidence which was proposed that Detective Sergeant Kelly would give on the reentry of were disclosed to the Applicant or his legal advisors.  They came into Court without an opportunity to investigate the allegation against the Applicant, and while they were given an opportunity to cross-examine Detective Sergeant Kelly, they have no information or fact upon which to base such cross-examination.  Understandably, Mr. Ridge BL conducted a very limited cross-examination.  Certainly, the principals set out by Barron J. Above were not complied with to any degree, and the principals of natural justice in fare procedures were not complied with.  
	As some considerable argument was addressed to me in relation to the nature of the proofs which would be necessary were the Applicant to be deprived of his liberty in the circumstances, I think I should comment briefly thereon.  The first named Respondent was certainly not bound to conduct a hearing in the nature of a criminal trial to ascertain the guilt of the Applicant in relation to the matters alleged against him,.  That would be for another day, and probably before a jury in the present case.  He did not have to satisfy himself beyond all reasonable doubt.  What he had to do was to conduct an inquiry to an extent that would reasonably satisfy on the matters at issue, and to conduct that inquiry in accordance with the principals of natural justice, in particular as set out in the State (Murphy) -v- Kielt.  In my view he did not even have to conduct an inquiry in accordance with the strict rules of evidence, ad he was certainly entitled to listen to and take account of the suspicions of Detective Sergeant Kelly.  Equally, he would have been entitled to look at a report from a probation officer.  However, he is obliged to satisfy himself that there is a basis for Sergeants Kelly’s suspicions, and, if such was the case, for the views of a probation officer.  In particular, he is also obliged to notify the Applicant or his legal advisors as to the nature of those suspicions or of that report, give them an opportunity or sufficient time to make their own inquiries, and allow them an opportunity to call such evidence as they might think for, following such inquiries.  
	Accordingly I will grant an Order of Certiorari quashing the decision of the first named Respondent of 8th October, 1999 that the Applicant serve the balance of the four years sentence imposed upon him