Two men serving prison sentences for the manslaughter of Det Garda Jerry McCabe have secured leave to bring High Court proceedings, claiming the continuing refusal by the Government to release them under the Belfast Agreement breaches their rights under the European Convention on Human Rights, which was incorporated into Irish law earlier this year.
Mr Justice de Valera yesterday told Mr Patrick Gageby SC, for Pearse McAuley and Jeremiah Sheehy, that he had established an arguable case allowing his clients to bring judicial review proceedings seeking their release. He returned to case to October 12th.
The core of the men's case is that the failure to release them breaches a number of provisions of the European Convention on Human Rights Act 2003 including their right not to be discriminated against, to equal treatment and to an effective legal remedy. Mr Gageby said the men contended that they were entitled to a proper determination of their rights.
They would argue the jurisprudence of European Convention on Human Rights supports the idea that even discretionary decisions regarding whether prisoners should be freed on parole or remain in jail are capable of being judicially reviewed.
There was greater scope under the Act for review of the Government's decision that the men were not entitled to be released.
Mr Gageby said the men had been unable to advance the European Convention on Human Rights arguments in other judicial review proceedings, which are still in being, because when they secured leave to take those proceedings in January 2002, the Government had failed to incorporate the convention into domestic law. However, the convention had been incorporated into Irish law earlier this year and the men now wished to raise issues under that, he said.
Mr Gageby said the men's case would rest almost entirely on arguments under the convention. Many of the other arguments which they sought to advance were dismissed by the Supreme Court earlier this year when that court rejected applications for the release of two other men under the Belfast Agreement.
Michael O'Neill and John Quinn were also jailed in connection with the attempted post office robbery at Adare, Co Limerick, in June 1996 during which Det McCabe was killed and Det Garda Ben O'Sullivan was injured.
On February 9th, 1999, McCauley, originally from Strabane, Co Tyrone, and Sheehy, from Limerick, were jailed for 14 years and 12 years respectively after pleading guilty at the Special Criminal Court to the manslaughter of Det Garda McCabe. Kevin Walsh (45), Patrickswell, Co Limerick, also got a 14-year jail term and O'Neill was jailed for 11 years for the same offence. Quinn pleaded guilty to conspiring with other persons to commit robbery and was jailed for six years.
In their earlier judicial review proceedings, which have yet to be heard, McAuley and Sheehy are seeking to overturn a Government decision that they are not entitled to be considered as qualifying prisoners under the terms of the Belfast Agreement and the Criminal Justice (Release of Prisoners) Act 1998.
They say the agreement states the "intention would be that, should the circumstances allow it, any qualifying prisoner who remained in custody two years after the commencement of the scheme would be released at that point".
The two men were taken into custody in Portlaoise prison in early November 1999 and from there were transferred to Castlerea prison, Co Roscommon. From time to time there, they have secured temporary release.
The men claim that apart from them and their co-accused, all other persons convicted of offences before the Special Criminal Court committed by or on behalf of the IRA, or in connection with its activities, have been released under the agreement, including persons jailed for the murder of RUC officers and gardaí.
In January last, the Supreme Court rejected an appeal by O'Neill and Quinn against the High Court dismissal of their claim that they were entitled to be released under the provisions of the agreement. The then Chief Justice, Mr Justice Keane, also said that the O'Neill and Quinn cases differed from others in that their convictions came after the conclusion of the agreement.
