Michael McKevitt, who is serving a 20-year sentence for membership of the Real IRA, will remain in prison at least until the Supreme Court hears an appeal on Friday against the early release of prisoners by the High Court.
Mr Justice Bernard Barton, who was expected to hand down a judgment today on whether McKevitt was in lawful or unlawful custody at Portlaoise Prison, told legal teams in the case he would reserve his decision until after the Supreme Court hearing.
When the judge said he would not be available today or tomorrow to hear an application for bail for McKevitt, Michael O’Higgins SC, said: “I am asking you to discharge the court’s duty and obligation to hear a bail application by sitting later today if that’s what is required. It is the duty and obligation of the court to consider whether bail is appropriate and that duty and obligation falls upon you. If it goes back into tomorrow that duty is not being discharged and I don’t make that application lightly,” he told Mr Justice Barton.
The judge said he was refusing the application by Mr O’Higgins, who had earlier told the court that it would not be touched by another judge who had not heard the article 40 application evidence and legal submissions made in seeking McKevitt’s release.
Mr Justice Barton said he would give liberty to apply for bail tomorrow. He said he should not even have been in court today, but had changed his arrangements so he could hear the article 40 application. He was entitled to reserve his judgment and would be doing so until after tomorrow’s hearing of an almost identical appeal before the Supreme Court.
This was a case in which the prisoner’s release had earlier been ordered by the High Court and which had been appealed by the State.
The judge said he was prepared to return from holiday next week to deal with the matter following the Supreme Court hearing. He would act immediately following the Supreme Court decision. Mr Justice Barton said he was very much aware of the function and duty of the court, especially in an article 40 application, and that was why he had decided to embark on the inquiry in the first place.
Mr O’Higgins said there was no guarantee that the Supreme Court would give its decision tomorrow or for how long it might reserve its decision. If it was being put back, he said he would like a day early next week when it could be mentioned to the court.
Diarmaid McGuinness SC said he had been given firm instructions to oppose bail for McKevitt in the meantime. While he had been granted release in the past, it was on humanitarian grounds for the briefest possible period to visit his mother. The court should not be swayed by previous temporary releases.
The matter was put in for mention before the duty judge on Monday next.
McKevitt had demanded a full one-third enhanced remission of a 20-year sentence imposed on him in August 2003, after he had been convicted in the Special Criminal Court of directing a terrorist organisation and of being a member of the Real IRA.
His sentence had been backdated to March 29th, 2001, and his legal team had claimed that with one-third remission he should have been freed on July 26th last, instead of March 2016 with only 25 per cent remission.
McKevitt's was one of a number of applications seeking the benefit of the one-third remission following judgments by Mr Justice Max Barrett and Mr Justice Gerard Hogan, in each of which cases orders had been made for the immediate release of the prisoner concerned.
The legal arguments centred on whether the Minister for Justice was duty- bound to release such a prisoner once he or she had been of good conduct and had engaged in authorised structured activities preparing them for reintegration into society and thus reducing the likelihood of their reoffending.
Mr McGuinness had told Mr Justice Barton that both of his colleagues’ earlier judgments had been appealed to the Supreme Court, which was due to hear the first of them on Friday, August 22nd.
The decision in one would apply to all other similar judgments. Mr O’Higgins had told the court that Mr McKevitt had carried out various studies and courses, and had participated in all authorised structured activities applicable to the enhanced remission and earlier release. While he had not engaged with the Probation Service, McKevitt had continued to maintain his innocence of the charges for which he had been convicted and imprisoned.
Mr McGuinness argued it was for the Minister for Justice to decide who should benefit from the enhanced remission and not any particular prisoner.