Dessie O'Hare, the so-called `Border Fox', has been granted "qualified prisoner" status by the Minister for Justice, Equality and Law Reform, Mr O'Donoghue and could now be eligible for release under the Belfast Agreement, the High Court heard today.
O'Hare was deemed a qualifying prisoner in November 2000. He had applied to the High Court to allow him to seek a judicial review of the decision last May by Mr O'Donoghue not to grant him an early release.
O'Hare will be considered for early release if he satisfies a number of reports requested by the Prisoners' Commission, which is then due to give advice to Mr O'Donoghue on the case. These reports comprise security, psychiatric and psychological reports.
Mr O'Donoghue has been ordered, however, by the court, to explain the reasons behind what Mr Justice O'Keeffe described as the "somewhat mystifying" four-month delay in obtaining these reports.
He said: "The Minister must take responsibility for any delay in the provision of information."
O'Hare is currently serving a 40-year sentence imposed at the Special Criminal Court in 1987 for the kidnapping and wounding of dentist, Mr John O'Grady.
Three of O'Hare's accomplices, Mr Edward Hogan, Mr Fergal Toal and Mr Anthony McNeill, have been released under the Belfast Agreement.
Under the terms of the Agreement and the subsequent Criminal Justice Release of Prisoners Act of 1998, once a prisoner has been granted "qualified status", the Minister must refer the matter to the Prisoners' Commission.
The Commission must then rule on the case and provide advice to the Minister. Under the terms of the Act, the Minister must take account of this advice when making his decision on individual cases.
Mr Sean Ryan SC, acting for the Minister of Justice, said this Act meant the Minister must take account of the advice, but was not legally bound by it.
The court was told this morning by Mr Patrick Gageby SC, for O'Hare, that his client was being held unlawfully at Portlaoise Prison after the refusal of his application for release.
In an affidavit read to the court, O'Hare said he had been active in the Republican movement since the early 1970s and claimed he was currently the operating commander in the INLA wing in the prison.
"The organisation with which I am affiliated is on a recognised ceasefire," he said, adding that he was in "total support" of the Belfast Agreement.
"I am a qualifying prisoner under the language of the [Criminal Justice Release of Prisoners] Act of 1998," he said.
Mr Gageby said in his submission he was not seeking any special consideration for his client under the terms of the Agreement.
"All I'm doing is requiring the State to abide by the law," he said.
Mr Gageby said this was not a "discretionary matter" for the Minister.
The case has been adjourned until April 26th.
