Man given leave to challenge failure to be declared qualified for early release

A man serving a 40-year sentence for the murder of a Garda more than 20 years ago has been granted leave by the Supreme Court to challenge the failure to declare him a qualifying prisoner for early release under the terms of the Belfast Agreement.

In November 1980, Colm O'Shea, then aged 28, Sunday's Well, Cork, was sentenced to death by hanging, later commuted to 40 years' imprisonment, following his conviction at the Special Criminal Court for the murder of Garda Henry Byrne on July 7th, 1980, at Aghaderry, Loughglynn, Co Roscommon.

Garda Byrne (29) and Det Garda John Morley (37), a former Mayo county footballer, were shot dead while investigating a raid on the Bank of Ireland branch at Ballaghaderreen. In December 1999 the High Court refused O'Shea leave to take a judicial review challenge to the failure to determine he was a qualifying prisoner under the Belfast Agreement. It ruled the application was premature because his case had not been considered by the Release of Prisoners Commission.

O'Shea argues the failure of the commission to make any decision on his case is an effective refusal to determine that he is a qualifying prisoner. He argues he is a qualifying prisoner because he has been convicted of offences similar to scheduled offences in Northern Ireland and is not affiliated to an organisation which has not established or maintained a complete and unequivocal ceasefire.

The Supreme Court yesterday granted O'Shea's appeal against the High Court refusal and granted leave to seek a number of orders and declarations in judicial review proceedings.

O'Shea argues the Belfast Agreement obliged the Irish and British governments to "put in place mechanisms to provide for the accelerated release of prisoners, including transferred prisoners, who were convicted of scheduled offences in Northern Ireland or, in the case of those sentenced outside Northern Ireland, similar offences" and stated: "Any such arrangements will protect the rights of individual prisoners under national and international law."

Under the Criminal Justice (Release of Prisoners) Act 1998, the Release of Prisoners Commission, on request, advises the Minister for Justice in relation to the release of persons who the Minister has specified to be qualifying prisoners for release. O'Shea argues the Act effectively means the Minister decides who is a qualifying prisoner for release.

He contends the prisoner is given no opportunity of even making a certain application or stating a case.

O'Shea wants a declaration that the Government failed to put in place a proper and lawful mechanism (as set out in the agreement) for the accelerated release of prisoners and that the mechanism which was established, the Criminal Justice Act, is unconstitutional.

He is seeking declarations that his rights under the Belfast Agreement should be determined by a fair hearing of an independent tribunal and that the actions of the Minister for Justice were unconstitutional and contrary to the Belfast Agreement and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

He also secured leave to seek an order quashing the "effective decision" of the Minister in not declaring him to be a qualifying prisoner as in the agreement.