A convicted rapist who fathered a son with his estranged daughter has been granted permission to pursue his High Court action against the governor of the Midlands Prison and the Minister for Justice over a temporary release refusal.
In January 2023, the man, who suffers ill health, was sentenced to 10 years' imprisonment with the final year suspended. He is now seeking an order as to the reasons why his application for temporary release was refused.
At Dundalk Circuit Criminal Court last year, Judge Patrick Quinn was told the man did not accept the verdict of the jury, who convicted him of incest after a five-day trial.
The court heard the grandmother of the child contacted gardaí in 2015 after discovering her daughter was pregnant.
Judge Quinn heard the man was jailed by the Central Criminal Court for six years in 1996 for rape and for three-and-a-half years by Dundalk Circuit Court in 2003 for sexual assault.
The man, who is 52 and who cannot be named, is also seeking a declaration from the High Court that the refusal of temporary release due to the nature of the offence, "absent of statutory provision, is unlawful".
The Punishment of Incest Act makes it a criminal offence "for a male to have carnal knowledge of a female person, who is, to his knowledge, his grand-daughter, daughter, sister or mother. The consent of the female in question is not a defence. It is also an offence for a female to allow such carnal knowledge to happen".
The man is further seeking a declaration from the court that the Minister for Justice has "fettered his/her discretion by operating a fixed policy in denying temporary release for prisoners serving sentences for sexual offences".
In submissions to the court, the man claims he suffers from ill health and "particularly, a chronic, infected wound on his right knee".
His lawyers claim medical records were provided to the governor of the prison showing that he requires medical attention, including inpatient hospital care.
The man claims that he was advised by a doctor last March that it would be difficult for him to walk without crutches and that the only form of mobilisation that may be open to him was a wheelchair.
"The applicant believes that the prison environment is not conducive to optimum convalescence and management of the injury," his lawyers submit.
The man made an application for temporary release in September 2023, which was refused, but claims that reasons for that refusal were unsuccessfully sought from the following October.
"The appellant's medical difficulties would be significantly improved if he had access to medical care in the community but correspondence from the applicant's solicitor has gone unanswered," it was submitted.
The man claims he was "orally informed" by a prison officer that his request for temporary release was declined because of the nature of the conviction recorded against him.
The prisoner's solicitor submits that there is "no legislative basis that prohibits the Minister for Justice from considering in a bona fide manner an application".
At the High Court today, Kathleen Leader SC, for the man, said that there was "no presumptive temporary release" for some offences, such as those of a sexual, drug or firearms nature but that there was also "no prohibition" on temporary release in this case.
Ms Justice Mary Rose Gearty told Ms Leader that she would grant permission for the man to pursue his legal actions and adjourned the matter to January.
If you have been affected by any of the issues raised in this article, you can call the national 24-hour Rape Crisis Helpline at 1800-77 8888, access text service and webchat options at drcc.ie/services/helpline/ or visit Rape Crisis Help.
